Case 1:09-cv-10309-JLT Document 65 Filed 05/25/10 Page 1 of 117

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS

NO.

__________________________________________

NANCY GILL & MARCELLE LETOURNEAU, )

MARTIN KOSKI & JAMES FITZGERALD,

)

DEAN HARA,

)

MARY RITCHIE & KATHLEEN BUSH,

)

MELBA ABREU & BEATRICE HERNANDEZ, )

MARLIN NABORS & JONATHAN KNIGHT, )

MARY BOWE-SHULMAN &

)

DORENE BOWE-SHULMAN,

)

JO ANN WHITEHEAD & BETTE JO GREEN, )

RANDELL LEWIS-KENDELL, and

)

HERBERT BURTIS,

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL MANAGEMENT, )

UNITED STATES POSTAL SERVICE,

)

JOHN E. POTTER, in his official capacity as

)

the Postmaster General of the United States of )

America,

)

MICHAEL J. ASTRUE, in his official capacity )

as the Commissioner of the Social Security

)

Administration,

)

ERIC H. HOLDER JR., in his official capacity )

as the United States Attorney General, and

)

THE UNITED STATES OF AMERICA,

)

Defendants.

)

__________________________________________)

CIVIL ACTION 1:09-cv-10309

SECOND AMENDED AND SUPPLEMENTAL COMPLAINT FOR DECLARATORY, INJUNCTIVE, OR OTHER RELIEF AND FOR REVIEW OF AGENCY ACTION

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Introduction/Nature of the Action 1. This is a case about federal discrimination against gay and lesbian individuals married to someone of the same sex, and the harm that discrimination has caused each plaintiff. 2. Plaintiffs in this action are citizens of the Commonwealth of Massachusetts and the United States of America. Each of the plaintiffs is, or was until becoming a widower, legally married to a person of the same sex in accordance with the requirements of Massachusetts state law. 3. Although the federal government does not license marriages, a large number of its programs take marital status into account in determining eligibility for federal protections, benefits and responsibilities. Statute, precedent, and practice establish state law as the touchstone for determining a couple’s marital status for purposes of determining eligibility for federal programs. 4. Each plaintiff, or his or her spouse, has made one or more requests to the appropriate agencies or authorities within the federal government for treatment as a married couple, a spouse, or a widower with respect to particular programs or benefits. Yet each of the plaintiffs has been denied and is still being denied legal protections and benefits under federal law that are available to a similarly situated person married to an individual of a different sex under Massachusetts law. 5. With each denial of specific protections or benefits, the defendants or their agents have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”) and have stated that the federal government will only respect marriages between a man and a woman.
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6. Several of the plaintiffs, as set forth below, seek spousal protections based on their employment with, or their spouse’s employment with, the United States government. Plaintiff Nancy Gill, a 22-year employee of the United States Post Office, already receives “Self and Family” health insurance coverage for herself and the two children she has with her spouse, plaintiff Marcelle Letourneau, through her job at the Post Office. Yet, unlike postal workers married to spouses of the opposite sex (see below at Paragraphs 67-105), she is unable to add her spouse, Marcelle, to that plan or to the vision benefit plan, nor can she use her flexible spending account for Marcelle’s medical expenses. Plaintiff Martin Koski, a retiree from the Social Security Administration, has been denied health insurance coverage for his spouse, plaintiff James Fitzgerald, although retired employees who are married to someone of a different sex may add their spouses to such coverage, as described below at Paragraphs 106-136. Plaintiff Dean Hara is the surviving spouse of Gerry Studds, a retired Member of the United States Congress. Dean has been denied both health insurance and the survivor annuity normally available to surviving spouses, which is described below at Paragraphs 137-184. In each instance, DOMA, 1 U.S.C. § 7, has barred the plaintiffs’ access to benefits routinely granted to others in similar circumstances.
7. Several of the plaintiffs, as set forth below, are being denied their correct spousal status by the Internal Revenue Service (“IRS”) on the basis of DOMA, 1 U.S.C. § 7, and thus have been required to pay more in federal income taxes than other similarly situated people married to someone of a different sex. Plaintiffs Melba Abreu and Beatrice Hernandez, as described below at Paragraphs 227-269, plaintiffs Mary Ritchie and Kathleen Bush, as described below at Paragraphs 185-226, plaintiffs Marlin Nabors and
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Jonathan Knight, as described below at Paragraphs 270-304, and plaintiffs Mary BoweShulman and Dorene Bowe-Shulman, as described below at Paragraphs 305-330, seek to file their federal income tax returns as “Married Filing Jointly” rather than as “Single” or “Head of Household.” Plaintiff Mary Ritchie also seeks to contribute funds to a “spousal IRA” for her spouse Kathleen Bush, to contribute to her retirement security, as an incomeearning person who is married to someone of a different sex may do (see below at Paragraph 203). Plaintiff Mary Bowe-Shulman, whose employment provides her spouse and children with family health insurance coverage, also seeks an exclusion of the value of her spouse’s health insurance coverage from her federally taxable income, just as a person who is married to someone of a different sex receives that exclusion from federal taxable income when his or her spouse receives employer provided health insurance coverage. Plaintiffs Abreu and Hernandez, plaintiffs Ritchie and Bush, plaintiffs Nabors and Knight, and plaintiffs Bowe-Shulman filed amended federal income tax returns with the IRS, asking to be re-categorized as married taxpayers and requesting refunds.
8. Several of the plaintiffs, as set forth below, seek spousal protections afforded by the Social Security program. Three different widowers, plaintiff Randell Lewis-Kendell, as described below at Paragraphs 357-387, plaintiff Herbert Burtis, as described below at Paragraphs 388-413, and plaintiff Dean Hara, as described below at Paragraphs 137-184, seek the “One-Time Lump-Sum Death Benefit” normally available upon the death of a spouse. Plaintiff Burtis, relying on the long work record of his spouse, also seeks the survivor benefit normally available to a widower married to someone of the opposite sex, as described below at Paragraphs 401-413. This benefit would increase his monthly Social Security payment by approximately $700 per month, to the level of the
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monthly payment that his deceased spouse, John Ferris, received before his death. As a person married to a spouse of a different sex is entitled to do (see below at Paragraph 342), plaintiff Jo Ann Whitehead, as described below at Paragraphs 331-356, seeks to increase her monthly Social Security payment based on the work record of her spouse, plaintiff Bette Jo Green, who has had higher earnings during their long relationship. Each of these plaintiffs has been denied these benefits by the Social Security Administration because of DOMA, 1 U.S.C. § 7.
9. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and Fed. R. Civ. P. Rule 57 and for review of agency action pursuant to 5 U.S.C. §§ 701-706. It seeks a determination that DOMA, 1 U.S.C. § 7, as applied to plaintiffs, violates the United States Constitution by refusing to recognize lawful marriages for purposes of the laws governing benefits for federal employees and retirees, the Internal Revenue Code, and the Social Security laws. The result of these violations of the Constitution is that each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex.
Jurisdiction and Venue 10. This action arises under the Constitution of the United States and the laws of the United States, including 26 U.S.C. § 7422. The jurisdiction of this Court is invoked pursuant to 5 U.S.C. § 8912; 5 U.S.C. § 8991; 28 U.S.C. § 1331; 28 U.S.C. § 1346(a)(1); and 42 U.S.C. § 405(g).
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11. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) and 28 U.S.C. § 1402(a)(1), because the plaintiffs reside in this district, and the events giving rise to these claims arose in this district.
Parties 12. Plaintiff NANCY GILL is a citizen of the Commonwealth of Massachusetts and resides in Bridgewater, Massachusetts. 13. Plaintiff MARCELLE LETOURNEAU is a citizen of the Commonwealth of Massachusetts and resides in Bridgewater, Massachusetts. 14. Plaintiff MARTIN KOSKI is a citizen of the Commonwealth of Massachusetts and resides in Bourne, Massachusetts. 15. Plaintiff JAMES FITZGERALD is a citizen of the Commonwealth of Massachusetts and resides in Bourne, Massachusetts. 16. Plaintiff DEAN HARA is a citizen of the Commonwealth of Massachusetts and resides in Boston, Massachusetts. 17. Plaintiff MARY RITCHIE is a citizen of the Commonwealth of Massachusetts and resides in Framingham, Massachusetts. 18. Plaintiff KATHLEEN BUSH is a citizen of the Commonwealth of Massachusetts and resides in Framingham, Massachusetts. 19. Plaintiff MELBA ABREU is a citizen of the Commonwealth of Massachusetts and resides in Boston, Massachusetts. 20. Plaintiff BEATRICE HERNANDEZ is a citizen of the Commonwealth of Massachusetts and resides in Boston, Massachusetts.
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21. Plaintiff MARLIN NABORS is a citizen of the Commonwealth of Massachusetts and resides in Hyde Park, Massachusetts.
22. Plaintiff JONATHAN KNIGHT is a citizen of the Commonwealth of Massachusetts and resides in Hyde Park, Massachusetts.
23. Plaintiff MARY BOWE-SHULMAN is a citizen of the Commonwealth of Massachusetts and resides in Acton, Massachusetts.
24. Plaintiff DORENE BOWE-SHULMAN is a citizen of the Commonwealth of Massachusetts and resides in Acton, Massachusetts.
25. Plaintiff JO ANN WHITEHEAD is a citizen of the Commonwealth of Massachusetts and resides in Jamaica Plain, Massachusetts.
26. Plaintiff BETTE JO GREEN is a citizen of the Commonwealth of Massachusetts and resides in Jamaica Plain, Massachusetts.
27. Plaintiff RANDELL LEWIS-KENDELL is a citizen of the Commonwealth of Massachusetts and resides in Harwich Port, Massachusetts.
28. Plaintiff HERBERT BURTIS is a citizen of the Commonwealth of Massachusetts and resides in Sandisfield, Massachusetts.
29. Defendant OFFICE OF PERSONNEL MANAGEMENT is an independent establishment of the Executive Branch of the government of the United States. Its actions, rules, and regulations are subject to review by the federal courts.
30. Defendant UNITED STATES POSTAL SERVICE is an independent establishment of the Executive Branch of the government of the United States, empowered by Congress to sue and be sued in its own name.
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31. Defendant JOHN E. POTTER is currently the Postmaster General of the United States of America. In his official capacity, the Postmaster General is responsible for the administration of employee-related benefits within the United States Postal Service.
32. Defendant MICHAEL J. ASTRUE is currently the Commissioner of the Social Security Administration, an independent agency of the United States Government. In his official capacity, the Commissioner of the Social Security Administration is responsible for the administration and enforcement of the Social Security Act.
33. Defendant ERIC H. HOLDER JR. is currently the Attorney General of the United States. In his official capacity, the Attorney General is the chief federal official responsible for the enforcement of all federal statutes in accordance with the Constitution of the United States of America.
34. Defendant THE UNITED STATES OF AMERICA is the proper defendant in a complaint seeking refund of federal income taxes pursuant to 26 U.S.C. § 7422(f)(1).
Facts Common To All Plaintiffs And All Claims 35. Each plaintiff is a citizen of the Commonwealth of Massachusetts and of the United States and has borne the obligations of citizenship by paying taxes and contributing to Social Security. 36. As United States citizens, each of the plaintiffs is entitled to equal consideration and treatment from the federal government, and with respect to each and every program operated by the federal government, including employment and retirement benefit programs arising from employment with the federal government, Social Security, and income taxation.
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37. Each of the plaintiffs is, or was until becoming a widower, married to a person of the same sex in accordance with the legal requirements of the Commonwealth of Massachusetts. Each of the plaintiffs married to nurture and support his or her family and, for some plaintiffs, to raise children. Each of these marriages was duly recognized under state law.
38. DOMA, 1 U.S.C. § 7, burdens the plaintiffs’ familial relationships, including their ability to form and support their marriages and families and to raise their children.
39. Although each of the plaintiffs is similarly situated to all other married or widowed persons in the Commonwealth of Massachusetts, DOMA, 1 U.S.C. § 7, requires the plaintiffs to deny the existence of their families and the nature of their familial relationships. DOMA, 1 U.S.C. § 7, thereby causes confusion and complexity in a culture where people are expected to have one familial and marital status, whether dealing with private, state or federal entities.
40. As a general matter, DOMA, 1 U.S.C. § 7, forces plaintiffs to misstate their actual marital status and describe themselves as “unmarried” to United States government officials and on United States government forms on pain of civil or criminal sanctions. For example, federal employees like plaintiff Nancy Gill could face criminal charges for false statements if she claimed Marcelle as her spouse on a health benefits election form. 18 U.S.C. § 1001. Under the Social Security Act, “any false statement” of a “material fact,” including marriage, in connection with an application for benefits, is punishable as a felony. 42 U.S.C. § 408. Federal income tax law requires income tax returns to be signed under the pains and penalties of perjury, 26 U.S.C. § 7206, but DOMA, 1 U.S.C. § 7, forces
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the plaintiffs to make blatant misrepresentations about their families and their marital status.
41. The requirement, imposed by DOMA, 1 U.S.C. § 7, that plaintiffs inaccurately identify their marital status as “single” or “unmarried” in federal contexts, even though they are legally married, burdens and stigmatizes their family relationships.
42. As a sovereign State of the United States of America, the Commonwealth of Massachusetts (hereafter, “the Commonwealth,” or “Massachusetts”) has, since its ratification of the United States Constitution and, indeed, before then, exclusively established and ordained the legal requirements for civil marriage within the Commonwealth and the status of spouses to such marriages entered into within the Commonwealth.
43. Effective May 17, 2004, with the implementation of the Massachusetts Supreme Judicial Court’s constitutional determination in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), same-sex couples who otherwise complied with the requirements for obtaining a marriage license in the Commonwealth of Massachusetts were and are entitled to marry under the law of the Commonwealth.
44. Since May 17, 2004, the Commonwealth of Massachusetts, pursuant to the Constitution of Massachusetts, has created, established, and recognized a single marital status that is available to every qualifying couple, whether same-sex or different-sex, i.e., regardless of the sex of the two parties to the marriage.
45. Massachusetts has also made a political determination that different-sex couples and same-sex couples must be treated the same with respect to marriage and its attendant rights and responsibilities. The Massachusetts Legislature has rejected every
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proposed constitutional amendment that would have reversed the Goodridge decision, most recently at the constitutional convention session of June 14, 2007. Uncorrected Proof of the Journal of the Senate, Thursday, June 14, 2007.
46. The plaintiffs are similarly situated to persons married to individuals of a different sex and, under Massachusetts law, are accorded the same status, responsibilities, and protections as other married persons. Federal law, however, treats same-sex and opposite-sex couples differently in the specific ways set forth in Paragraphs 67 through 413 below.
47. The federal government of the United States has, since its founding and at least until 1996, recognized the exclusive authority every state possesses, as an essential part of its sovereignty, to determine the civil status and capacities of all its inhabitants, including the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created.
48. Throughout history and at least until 1996, the United States has consistently deferred to the sovereignty of the States when the marital status of an individual has been used as a marker of eligibility or access to some benefit, right, or responsibility identified by the federal government.
The “Defense of Marriage Act” 49. Congress enacted the so-called “Defense of Marriage Act” (“DOMA, 1
U.S.C. § 7”), P.L. 104-199, in 1996, and it was approved on September 21, 1996. 50. This law responded to “a very particular development in the State of
Hawaii.” H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905, at 2906. As the controlling House Judiciary Committee Report explained “the state courts in Hawaii appear
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on the verge of requiring that State to issue marriage licenses to same-sex couples,” and that development “threatens to have very real consequences … on federal law….” Id. More specifically,
[I]f Hawaii does ultimately permit homosexuals to ‘marry,’ that development could have profound practical implications for federal law. For to the extent that federal law has simply accepted state law determinations of who is married, a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits. Id., at 2914. 51. Section 3 of DOMA, 1 U.S.C. § 7, provides in its entirety as follows: Sec. 3 DEFINITION OF MARRIAGE. (a) IN GENERAL – Chapter 1 of title 1, United States Code is amended by adding at the end the following: §7. Definition of ‘marriage’ and ‘spouse’
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” (b) CLERICAL AMENDMENT. – The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: “7. Definition of ‘marriage’ and ‘spouse’.”
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52. In passing DOMA, 1 U.S.C. § 7, Congress took the unprecedented step of preemptively nullifying a class of marriages that it expected states would begin to license at some point in the future, that is, marriages of same-sex couples. It withdrew from these marriages, but not from others, all federal financial and other responsibilities and protections.
53. With regard to a gay or lesbian individual married to someone of the same sex, DOMA, 1 U.S.C. § 7, has overridden the longstanding deference of federal to state law in determining the marital status of an individual seeking the benefit or responsibility of any federal law triggered by a person’s state-established marital status, and categorically denies both rights and responsibilities.
54. In a 1997 Report, the General Accounting Office (“GAO”) estimated that at least 1,049 federal laws were affected by DOMA, 1 U.S.C. § 7, because those laws depended on or in some way related to marital status. U.S. Gen. Accounting Office, GAO/OGC-97-16 Defense of Marriage Act (1997), available at http://www.gao.gov/archive/1997/og97016.pdf. A follow-up study in 2004 found that 1,138 federal laws tied benefits, protections, or responsibilities to marital status. U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
55. If not for the application of DOMA, 1 U.S.C. § 7, to all federal programs, the plaintiffs, as persons married under Massachusetts law, would receive the same status, responsibilities and protections under federal law as other married persons. Yet when same-sex couples began to marry in Massachusetts, DOMA, 1 U.S.C. § 7, operated to single out one class of marriages legally recognized by the Commonwealth of
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Massachusetts, those of same-sex couples, and to deny their existence for all conceivable ends and purposes of federal law.
56. Plaintiffs have been denied legal protections normally available to spouses under federal law. Despite plaintiffs’ willingness to assume the legally imposed responsibilities of marriage at the federal level, just as they do at the state level, they are prevented from doing so by DOMA, 1 U.S.C. § 7.
57. DOMA, 1 U.S.C. § 7, grants preferred legal status and unique privileges to individuals married to someone of a different sex.
58. The official House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No. 104-664, advances four rationales for why the federal government drew a line between its treatment of an individual married to a person of the same sex versus an individual married to a person of the opposite sex. Those reasons are:
(1) H.R. 3396 [the bill number] ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL HETEROSEXUAL MARRIAGE.
(2) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY.
(3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF GOVERNANCE.
(4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES.
59. None of these interests is adequate to justify discrimination against married persons in same-sex relationships. The first two rationales have nothing to do with any federal interest and simply reflect a belief that same-sex couples should not be permitted to marry.
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60. The first claimed federal “interest” in “defending” “traditional heterosexual marriage” simply restates the government’s intent to discriminate against same-sex couples and provides no independent justification for the government’s discriminatory action. The federal government has long accepted state determinations of marital status, even in the face of changes in marriage licensing by the states. The only state-licensed marriages it categorically refuses to respect are those of same-sex couples. In short, this “interest” repeats the distinction drawn by DOMA, 1 U.S.C. § 7, that is, between married couples of the same sex and married couples of different sexes, but it does not explain it.
61. The federal government’s refusal to recognize the plaintiffs’ marriages does not nurture, improve, stabilize or enhance the marriages of other married couples. Nor would the federal government’s recognition of plaintiffs’ marriages degrade, destabilize or have any other deleterious effect on the marriages of other married couples.
62. The second claimed federal interest in “morality” is another reframing of Congress’s disapproval of gay men and lesbians. Gay men, lesbians and bisexuals have suffered a long history of public and private discrimination. Discrimination for its own sake is not a legitimate purpose upon which disadvantageous classifications may be imposed. Moreover, sexual orientation bears no relation whatsoever to an individual's ability to participate in or contribute to society.
63. The third claimed interest in “protecting state sovereignty” is actually subverted by DOMA, 1 U.S.C. § 7, not advanced by it. Congress contravened inherent constitutional principles of federalism and failed to honor our nation’s system of dual sovereignty in enacting DOMA, 1 U.S.C. § 7, because it is the states, and not the federal government, that regulate marriage and determine family status. Congress did not
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“protect” state sovereignty in enacting DOMA, 1 U.S.C. § 7, since it dishonored the sovereignty of the states that license or recognize marriages of same-sex couples.
64. As to the fourth claimed interest of preserving government resources, the available data from the Congressional Budget Office establishes that recognizing the marriages of individuals married to a person of the same sex would result in an annual net increase in federal revenue through 2014. Congressional Budget Office, U.S. Congress, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, June 21, 2004. There was and is no factual basis for the claim that DOMA, 1 U.S.C. § 7, “preserve[es] scarce government resources.”
65. While the public fisc is always a matter of concern, it is not a legitimate interest in the context of Congressionally provided protections and responsibilities for spouses and families. Congress has yet to identify a reason why gay and lesbian individuals who have met their obligations as taxpaying citizens and who are married to someone of the same sex must be denied protections available to persons who are married to someone of a different sex. Singling out same-sex couples who are married among all married persons is simply an expression of the intent to discriminate against gay people.
66. At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate federal interest.
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Facts Particular To Individual Plaintiffs
Plaintiffs Nancy Gill and Marcelle Letourneau 67. Plaintiff Nancy Gill (“Nancy”) is, and was at all relevant times, an employee
of the defendant, United States Postal Service (“Postal Service”). Nancy has worked for the Postal Service since 1987.
68. Nancy met her spouse, plaintiff Marcelle Letourneau (“Marcelle”), in 1978, and they have been a committed couple since 1980.
69. Marcelle has been employed in administrative capacities by a nursing services provider in Massachusetts for more than 25 years. She also works as an independent medical transcriptionist.
70. After 12 years together, Nancy and Marcelle had their first child, a daughter, now age 17. A son, now age 10, followed. Nancy worked the night shift at the Post Office for many years to be available to her children during the day. Both children have hyphenated last names with the surnames of their two parents.
71. Nancy and Marcelle live in a home they jointly own in Bridgewater, Massachusetts, together with their children, who attend public school.
72. After 24 years together, on Friday, May 21, 2004, Nancy and Marcelle were married by a justice of the peace in Brockton, Massachusetts in strict and complete accordance with Massachusetts law. They then went away together for the weekend with their family to celebrate.
73. Although Nancy and Marcelle married to solemnize their longstanding commitment to each other and their family, they also looked forward to the spousal benefits they expected to receive from the Postal Service.
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74. As an employee of the United States Postal Service, Nancy is enrolled in the
Federal Employees Health Benefits Program (“FEHB”).
75. Nancy has been enrolled in FEHB with a “Self and Family” Plan since the
birth of her and Marcelle’s daughter in January 1993. The plan now covers herself and
their two children.
76. According to the FEHB Handbook, “Self and Family” enrollment is
described as follows:
Self and Family
A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.
You may enroll for self and family coverage before you have any eligible family members. Then, a new eligible family member (such as a newborn child or a new spouse) will be automatically covered by your family enrollment from the date he/she becomes a family member. When a new family member is added to your existing self and family enrollment, you do not have to complete a new SF 2809 or other appropriate request, but your carrier may ask you for information about your new family member. You will send the requested information directly to the carrier. Exception: if you want to add a foster child to your coverage, you must provide eligibility information to your employing office.
FEHB Handbook, Enrollment, Types of Enrollment (emphasis supplied).
77. According to 5 U.S.C. § 8901(5), “member of family” is defined, in part, to
“mean[] the spouse of an employee or annuitant and an unmarried child under 22 years of
age ….”
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78. Although Marcelle should have been automatically covered by Nancy’s Self and Family Plan upon Nancy and Marcelle’s marriage on May 21, 2004, Nancy took the additional, permitted step of submitting a standard SF 2809 form to her employing office, dated May 24, 2004, listing as her family members her children and her spouse. This form was submitted on the Monday following Nancy and Marcelle’s marriage the previous Friday.
79. Nancy’s SF 2809 form was received in her employing office on May 24, 2004.
80. On May 25, 2004, Nancy had a conversation with her Human Resources Manager, Ann Mailloux, concerning her rights to benefits coverage for her spouse, Marcelle.
81. By letter dated June 4, 2004, the United States Postal Service formally advised Nancy “that the Postal Service is unable to provide you with benefit coverage for your partner [sic].” Letter from Ann Mailloux, Manager, Human Resources, USPS, Southeast New England Performance Cluster, to Nancy M. Gill (June 4, 2004).
82. The June 4, 2004, letter provided the following reasoning: The Postal Service is bound by rules and regulations issued by the Office of Personnel Management and applicable federal law (as opposed to state law). Same-sex partners are not considered eligible under Federal Employees Health Benefits (FEHB) or Federal Employees Group Life Insurance (FEGLI) in that federal law defines family members (which are covered) as a spouse and an unmarried dependent child under age 22. Public Law 104-199, Defense of Marriage Act, states, that the word ‘marriage’ means 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.
83. Nancy and Marcelle were shocked that Marcelle was denied benefits under Nancy’s plan. On June 7, 2004, Nancy filed a request for pre-complaint counseling under
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the Equal Employment Opportunity Process and was advised to complete and return PS Form 2564-A within 10 days.
84. Nancy completed PS Form 2564-A within 10 days, asserting that she had not been treated equally and had been “discriminated against for being a lesbian.” PS Form 2654-A, p. 1, Section B. Specifically, she stated: “Anyone who has gotten married while employed by the US Postal Service has the right to put their new spouse on their Health Insurance. That new spouse is entitled by marriage to a host of benefits which my spouse is denied. How can this be called anything but discrimination?” PS Form 2654-A, p. 2, Section D.
85. For a resolution to her pre-complaint, Nancy stated: “Allow me to have the same rights as my co-workers who are married.” PS Form 2654-A, p. 2, Section F.
86. By letter dated June 21, 2004, USPS NEEO Dispute Resolution Specialist Debra A. DeSantis corresponded with Nancy to “conclude the pre-complaint stage of the EEO Complaints Process.” Letter from Debra DeSantis, NEEO Dispute Resolution Specialist, USPS, Southeast New England Performance Cluster, to Nancy Gill (June 21, 2004).
87. The June 21, 2004 letter apprised Nancy that: (1) benefits are administered by the Office of Personnel Management, which relies on Public Law 104-199, i.e., DOMA, 1 U.S.C. § 7, to exclude the marriages of same-sex couples from the requested benefit; and (2) as to “the factors of discrimination as depicted [sic] in the Civil Rights Act, Title VII does not include sexual orientation as a protected class.”
88. On June 29, 2004, Nancy signed and filed an “EEO Complaint of Discrimination in the Postal Service,” seeking “the same rights and benefits and
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responsibilities as any one of my co-workers who are also married.” Case No. 1B-0240007-04; Complaint, Item No. 17.
89. By decision dated July 20, 2004, Nancy’s Complaint in Case No. 1B-024007-04 was dismissed for failure to state a claim because discrimination based on sexual orientation “is not actionable under EEOC Regulations.”
90. Because the Office of Personnel Management, following DOMA, 1 U.S.C. § 7, would not permit Nancy to cover Marcelle through her family health insurance, Nancy and Marcelle had to purchase health insurance for Marcelle that would otherwise have cost nothing, since Nancy already had the “Self and Family” plan.
91. Because of the extra expense of health insurance for Marcelle, Nancy again sought to add Marcelle to her FEHB Self and Family Plan, as well as to the available vision benefit plan (“FEDVIP”) and to her flexible spending account, during the open enrollment period between November 10, 2008 and December 9, 2008.
92. Initially, Nancy sought to enroll Marcelle through the PostalEASE system through her home computer, and then through the PostalEASE Employee Kiosk at her workplace on Friday, November 21, 2008.
93. When Nancy attempted to add Marcelle as her spouse for health insurance and identified Marcelle’s gender as “female,” the system returned a message that said: “Your gender and the gender selected for your spouse cannot be the same.”
94. When Nancy attempted to add Marcelle as her spouse for the vision insurance plan and identified Marcelle’s gender as “female,” the system again returned a message that said: “Your gender and the gender selected for your spouse cannot be the same.”
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95. Although PostalEASE allowed Nancy to enter Marcelle on her list of
dependents, when Nancy attempted to “Finish Enrollment,” the system produced an error
message: “Unknown Tran Codes.”
96. Nancy also received a message from the kiosk system that said: “The system
cannot process a 2809 form for you at this time – You must complete an FEHB enrollment
through PostalEASE before you can print a completed 2809 Enrollment Form.”
97. Despite the refusal of the PostalEASE system to accept her enrollment
request, Nancy persisted by phone and by mail to obtain assistance from her local Human
Resources officer in adding Marcelle to her health and vision benefit plans and flexible
spending account.
98. Nancy received a response by letter dated December 8, 2008, from Michelle
Palardy, HR Generalist Principal, USPS – SENE District. Letter from Michelle Palardy,
Human Resources General Specialist, USPS—Southeast New England District, to Nancy
Gill (Dec. 8, 2008).
99. The text of the December 8, 2008, letter stated in its entirety:
This is in response to your inquiry regarding adding your spouse to your health benefits during open season 2009.
After researching the situation, I have found information on the US Office of Personnel Management website (www.opm.gov) that states that same sex partners are not eligible as family members under enrollment in Federal Employees Health Benefits Programs, Federal Employees Dental and Vision Insurance Program, Federal Employees’ Group Life Insurance Program, Federal Flexible Spending Account Program, and Federal Long Term Care Insurance Program.
The Office of Personnel Management sites [sic] Public Law 104199 Defense of Marriage Act. It 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.”
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I have attached a copy of the page from the OPM website that states this. I hope that this has been responsive to your concerns in this matter. 100. The Office of Personnel Management (“OPM”) website material attached to the December 8, 2008, letter indicates that it “can be found on the web at the following url: http://opm.gov/insure/lifeevents/le4a.asp.” 101. Nancy followed up by writing a letter to the United States Postal Service HR Shared Services Center in Greensboro, North Carolina to confirm that there were no further steps she could take to enroll Marcelle for spousal benefits. Letter from Nancy Gill to Michelle Palardy, Human Resources General Specialist, USPS—Southeast New England District and Open Enrollment Manager, Shared Services, USPS (Dec. 18, 2008). 102. By letter dated January 2, 2009, the HR Shared Services Center wrote to Nancy regarding Reference # H-2583279 and stated: “the information provided to you by Michelle Palardy is correct.” Letter from USPS, Human Resources Shared Service Center, Greensborough, N.C., to Nancy Gill (Jan. 2, 2009). 103. As a result of the United States Postal Service’s application of DOMA, 1 U.S.C. § 7, Marcelle has been denied both health and vision insurance as well as all other employment-related benefits available to the spouses of United States Postal Service employees. 104. As a result of the United States Postal Service’s application of DOMA, 1 U.S.C. § 7, Nancy has been prohibited from covering Marcelle under her federal flexible spending arrangement as well as all other employment-related benefits available to United States Postal Service employees for the support of their spouses.
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105. As a result of this exclusion from benefits, Marcelle and Nancy have suffered specific and concrete financial harms. Spousal health insurance and vision coverage are valuable benefits of employment. Marcelle and Nancy have been forced to buy health insurance for Marcelle as if they were not married, to the financial detriment of Marcelle, Nancy, and their children. Nancy and Marcelle have also been denied, among other things, the financial benefits that accrue to a household from the use of a flexible spending arrangement for the medical expenses of a spouse.
Plaintiffs Martin Koski and James Fitzgerald 106. Plaintiff Martin Koski (“Martin”) is a retired employee of the Social
Security Administration. 107. Martin and his spouse James Fitzgerald (“Jim”) have been in a committed
relationship for over 35 years. 108. Jim currently works as a counselor’s aide at an alcohol treatment center. 109. Martin worked as a claims representative for the Social Security
Administration from 1968 until 1979 in Boston. 110. In 1979, Martin and Jim decided to move to Florida together, and so Martin
left his job at the Social Security Administration. 111. In Florida, Martin worked as a travel agent, while he and Jim together took
care of Martin’s father, who was dying of cancer. Martin’s father passed away in 1994, with Martin and Jim at his side.
112. In 1995, Martin and Jim returned to Boston. Martin was welcomed back to his prior position as a claims representative for the Social Security Administration, where he worked until his retirement in 2005.
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113. As a former employee and qualified annuitant of the Social Security Administration, Martin is enrolled in the FEHB.
114. For some time prior to October 5, 2007, Martin was enrolled in FEHB under a “Self-Only” plan, covering, as the name suggests, himself only.
115. Pursuant to 5 U.S.C. § 8905, 5 C.F.R. § 890.306(g)(1) and the FEHB handbook, an FEHB enrollee is allowed to change his enrollment from “Self Only” to “Self and Family” beginning 31 days before and ending 60 days after a change in family status, which includes a change in marital status.
116. According to the FEHB Handbook, “Self and Family” enrollment is described as follows:
Self and Family A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member. FEHB Handbook, Enrollment, Types of Enrollment. 117. According to 5 U.S.C. § 8901(5), “member of family” is defined, in part, to “mean[] the spouse of an employee or annuitant and an unmarried child under 22 years of age . . . .” 118. After more than 30 years together, Martin and Jim married on September 10, 2007, in Bourne, Massachusetts, in strict and complete accordance with Massachusetts law. They married because of their longstanding commitment to one another and their belief that marriage would provide them with additional legal security.
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119. On October 5, 2007, within the 60-day period in which to request a change in enrollment, Martin sent OPM a request to change his enrollment for health benefits from “Self-Only” to “Self and Family” and included his Massachusetts marriage certificate as proof of marriage.
120. By letter dated January 15, 2008, Martin received a denial of his request from the Retirement Benefits Branch of OPM. Letter from Tianna Butler, Annuitant Insurance Specialist, Retirement Benefits Branch, OPM, to Martin A. Koski (Jan. 15, 2008).
121. OPM based its denial of Martin’s request for family health insurance for Jim on DOMA, 1 U.S.C. § 7. In its January 15, 2008 letter, OPM stated:
Coverage under the FEHB Program is limited to certain family members. The FEHB Program is governed by Federal law. Title 5, United States Code, section 8901(5) defines family members as an employee’s or annuitant’s spouse and his or her unmarried dependent children under the age of 22. Public Law 104-199, the Defense of Marriage Act, states, “In determining the meaning of any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or a wife.” Based on the FEHB law and the Defense of Marriage Act, OPM has determined that James Fitzgerald is not a recognized qualified dependant and cannot be added to your existing enrollment in the FEHB Program. Therefore, your enrollment will remain as a self only enrollment. 122. On January 25, 2008, Martin timely requested reconsideration of his denial. Letter from Martin A. Koski to OPM, Retirement Operations Center, Boyers, PA (Jan. 25, 2008).
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123. By letter dated July 1, 2008, OPM responded to Martin’s request for reconsideration and affirmed its original decision to deny Martin’s request to change his enrollment to “Self and Family” coverage. Letter from Antionette Vanderhorst, Legal Administrative Specialist, Disability, Reconsideration and Appeals Group, OPM, to Martin A. Koski (July 1, 2008).
124. In its July 1, 2008 denial of Martin’s request for reconsideration, OPM again relied upon DOMA, 1 U.S.C. § 7:
Because your marriage to James Thomas Fitzgerald does not meet the definition of marriage in accordance with § 7 [DOMA, 1 U.S.C. § 7], we find that he does not qualify as a family member as specified under section 8901(5) of title 5, United States Code. Therefore, we must deny your request to change your FEHB self-only coverage to self and family coverage. 125. On October 10, 2008, Martin sent a letter to OPM requesting a survivor annuity benefit for his spouse, Jim, and included a copy of his marriage certificate as proof of marriage. Letter from Martin A. Koski to OPM, Boyers, PA (Oct. 25, 2008). 126. On November 13, 2008, Martin sent an e-mail to OPM requesting information about the processing of his request for a survivor annuity benefit. E-mail from Martin A. Koski to OPM (Nov. 13, 2008, 4:21:30 PM). 127. On December 9, 2008, OPM responded to Martin’s e-mail informing him that his request had been logged into the “Post-Retirement Section” in Boyers, Pennsylvania on October 23, 2008, and was currently being processed. E-mail from Bambi Bonaddio, Customer Service Specialist, Customer Services Group, OPM, to Martin A. Koski (Dec. 9, 2008, 10:49 EST). 128. By letter dated January 26, 2009, OPM denied Martin’s request for survivor annuity benefits for Jim, stating that “We do not recognize same sex marriages. The word
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‘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 and wife.” Letter from Susan Bonefeste, Legal Administrative Specialist, Post Retirement Section, OPM, to Martin A. Koski (Jan. 26, 2009). The letter informed Martin of the process for requesting reconsideration of OPM’s denial.
129. On February 2, 2009, Martin timely requested reconsideration of OPM’s denial of his request for survivor annuity benefits for Jim. Letter from Martin A. Koski to OPM, Retirement Operations Center, Boyers, PA (Feb. 2, 2009).
130. OPM denied Martin’s request for reconsideration and affirmed its initial decision by letter dated March 24, 2009. Letter from Antionette Vanderhorst, Legal Administrative Sepcialist, Disabilities, Reconsideration and Appeals Group, OPM, to Martin A. Koski (March 24, 2009).
131. On April 23, 2009, Martin appealed the OPM’s denial of his request for survivor annuity benefits for Jim to the Merit Systems Protection Board (“MSPB”). Letter from Martin Koski to William L. Boulden, Chief Administrative Judge, Northeastern Regional Office, MSPB, April 23, 2009.
132. The MSPB acknowledged receipt of Martin’s appeal on April 24, 2009. Acknowledgment Order, Martin A. Koski v. Office of Personnel Management (CSA: 826487), Docket No. PH-0843-09-0411-I-1.
133. On June 12, 2009, Martin filed at the MSPB an unopposed motion for dismissal without prejudice to re-filing.
134. Administrative Judge Lystra A. Harris granted Martin’s motion to dismiss without prejudice on June 15, 2009. The appeal may be re-filed between July 25, 2009 and
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December 15, 2010. Initial Decision, Martin A. Koski v. Office of Personnel Management (CSA: 826487), Docket No. PH-0843-09-0411-I-1
135. As a result of OPM’s application of DOMA, 1 U.S.C. § 7, Jim has been denied health insurance and survivor annuity benefits available to the spouses of federal retirees even though he is legally Martin’s spouse under Massachusetts law.
136. As a result of this exclusion from benefits, Martin and Jim have suffered specific and concrete financial harms to themselves and to their household. In particular, Jim has severe asthma that must be controlled with multiple medications. Jim has been forced, among other things, to purchase health insurance for himself with coverage inferior to that of the federal employee health insurance benefit and at a cost greater than the cost of the federal spousal health insurance coverage. His deductibles and prescription medication co-payments are higher than they would be if he had access to the FEHB insurance.
Plaintiff Dean Hara 137. Plaintiff Dean Hara (“Dean”) is a financial advisor working as an
independent contractor with a financial services company. 138. Dean is the widowed spouse of former United States Congressman Gerry E.
Studds (“Congressman Studds” or “Gerry”). 139. Congressman Studds served in Congress, as a Representative from
Massachusetts, for 24 years from his first election in November 1972 until he did not seek re-election in 1996 and his retirement in January 1997.
140. Dean moved to Washington, D.C. in 1979 for school and then employment. He and Gerry first met through mutual acquaintances in the early 1980s, and they crossed paths often in their mutual neighborhood of Dupont Circle.
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141. In January 1991, Gerry and Dean began a dating relationship. Eight months later, on Labor Day, Gerry proposed to Dean, asking him to accept and return a commitment for life. Shortly thereafter, Dean accepted, and they were a committed couple from that day in 1991 forward.
142. Throughout Congressman Studds’s terms from 1991 through January 1997, Dean attended countless public, Congressional, and political events as the Congressman’s recognized spouse.
143. Dean became a member of the Democratic Spouses organization. He continues to belong to that organization to this day.
144. Dean received and carried the official Congressional Spouse Photo Identification card listing him as the spouse of Congressman Studds, 10th MA, which was issued by the Sergeant at Arms of the U.S. House of Representatives in January 1995.
145. Upon Gerry’s retirement from federal employment, he and Dean moved to Massachusetts, splitting time between Provincetown, Massachusetts, which was in Gerry’s congressional district, and Boston, Massachusetts until 2002, when Boston became their sole residence.
146. After 13 years as a committed couple, on May 24, 2004, Gerry and Dean were married in Boston, Massachusetts, in strict and complete accordance with Massachusetts law. They married because the law finally allowed them to formalize the vow of lifetime commitment they had made in 1991.
147. On October 3, 2006, Gerry never returned home from his morning walk with their dog, Bonnie, as he had suddenly lost consciousness and collapsed because of a blood clot in his lung.
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148. Initially, Gerry’s condition improved in the hospital but then worsened unexpectedly on Friday, October 13, 2006. He died in the early morning hours of Saturday, October 14, 2006, at Boston Medical Center, leaving Dean as his surviving spouse.
149. At the time of Congressman Studds’s death, he was insured under the Social Security program, and he and Dean had been living together in the same household in Boston, Massachusetts.
150. Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and §404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the surviving spouse was “living in the same household with the deceased at the time of death,” if the surviving spouse applies for the benefit “prior to the expiration of two years after the date of death …,” and if the deceased spouse was “fully or currently insured” at the time of death.
151. Shortly after Gerry’s death, Dean applied for this Social Security lump-sum death benefit.
152. By letter dated November 14, 2006, the Social Security Administration issued a Notice of Disapproved Claim to Dean, stating in pertinent part:
We have considered your application for Social Security benefits. Since the Defense of Marriage Act prohibits SSA from finding that you and the insured were married for benefit purposes, you are not eligible for the lump sum death payment. Other Social Security Benefits You do not qualify for any other Social Security benefits based on the application you filed. In the future, if you think you may be entitled to benefits, you will need to apply again. If You Disagree With The Decision
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If you disagree with the decision, you have the right to appeal…. Letter from Judy Bernstein, Field Office Manager, Social Security Administration, Boston Office, to Dean T. Hara (Nov. 14, 2006).
153. As a result of the actions of the Social Security Administration and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Dean, Gerry’s surviving legal spouse under Massachusetts law, has been denied the $255 death benefit otherwise available to him under 42 U.S.C. § 402(i).
154. In 2006, Dean made an explicit and formal request to SSA, and he received an explicit and formal notice from the SSA denying him the right and opportunity to receive a lump-sum death benefit following the death of his legal spouse.
155. Because the SSA does not recognize Dean’s marriage, Dean has been denied the Social Security death benefit and has thus suffered specific and concrete financial harm.
156. Based upon his 27 years of federal service, including 24 years as a Congressman from Massachusetts, Congressman Studds was a participant in the Civil Service Retirement System (“CSRS”).
157. As part of his retirement planning, on May 17, 1993, Gerry designated Dean as the beneficiary of any “lump sum benefit” payable upon his death under
5 U.S.C. § 8342 and filed that designation with OPM. Standard Form No. 2808 (May 17, 1993).
158. On an immediate retirement application dated September 18, 1996, Congressman Studds indicated that he was unmarried, and he elected an unreduced annuity based on 27 years of total federal service. Standard Form No. 2801 (Sept. 18, 1996).
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Congressman Studds had no alternative, because no state had yet recognized his and Dean’s right to marry.
159. While Congressman Studds and Dean married in 2004, DOMA, 1 U.S.C. §7, still prevented Congressman Studds from electing a retirement annuity that provided a spousal annuity for Dean.
160. Congressman Studds received retirement annuity benefits from his January 2, 1997, retirement until his death. These benefits were a meaningful part of the household income that he and Dean relied upon.
161. On March 1, 2007, Dean applied for death benefits, both as Gerry’s widower and as executor of Gerry’s estate, by submitting an “Application for Death Benefits – Civil Service Retirement System” on Standard Form 2800 (Revised May 2000).
162. OPM issued a check, dated March 29, 2007, to Dean T. Hara in the amount of $4,141.38 and with the notation “78 CSF LUMPSUM.” This represented the lump-sum benefit remaining in Congressman Studds’s retirement account.
163. OPM’s communication to Dean that accompanied the March 29, 2007, check included the statement: “You are entitled to a lump sum payment because of the death of a former employee.”
164. OPM’s communication to Dean that accompanied the March 29, 2007 check also included, under “Remarks,” the following:
WE REGRET TO INFORM YOU THAT YOUR LATE SPOUSE DID NOT ELECT SURVIVOR BENEFITS. THIS MONEY IS ALL YOU WILL RECEIVE FROM RETIREMENT. 165. By letter dated May 30, 2007, OPM advised Dean that it was denying his claim for a monthly survivor annuity. For its reasons, OPM’s letter states, in its entirety:
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“Our records show that your spouse did not notify our office of your marriage and no election was made to provide a survivor annuity for you.” Letter from Brenda Hughes, Legal Administrative Specialist, Retirement Operations Center, OPM, to Dean T. Hara (May 30, 2007).
166. Dean requested reconsideration of OPM’s decision by letter dated June 28, 2007. Letter from Dean T. Hara to OPM Retirement Operations Center (June 28, 2007).
167. By letter dated October 24, 2007, OPM denied Dean’s request for reconsideration, reiterating its position that no benefits were available to Dean because Congressman Studds had not elected a survivor annuity for Dean. Letter from Joseph E. Miller, Jr., Legal Administrative Specialist, OPM, to Dean T. Hara (Oct. 24, 2007).
168. Dean filed a Notice of Appeal to the MSPB by letter dated November 27, 2007. Letter from Dean T. Hara to Regional Director, Northeastern Regional Office, MSPB, Philadelphia, P.A. (Nov. 27, 2007).
169. On February 26, 2008, OPM rescinded its final decision of October 24, 2007, indicating that a new reconsideration decision would be issued in the future. As a result, Dean’s original MSPB appeal was dismissed without prejudice.
170. By letter dated June 24, 2008, OPM issued a new reconsideration decision and again reiterated its denial of a survivor annuity to Dean while asserting two grounds for denial:
You have not established that Representative Studds elected a survivor annuity benefit for you. A same-sex marriage in any jurisdiction cannot be recognized for benefit entitlement purposes under any Federal statute administered by OPM. Therefore, even if Representative Studds had elected a survivor benefit for you, under 1 U.S.C. §7, we could not approve your application for a survivor annuity.
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Letter from Joseph E. Miller, Jr., Legal Administrative Specialist, OPM, to Dean T. Hara (June 24, 2008).
171. Dean timely re-filed an appeal to the MSPB based upon OPM’s new reconsideration decision.
172. Following a one-day hearing in October 2008, Chief Administrative Judge William L. Boulden issued a decision on Dean’s appeal on December 17, 2008. Dean T. Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I2.
173. Judge Boulden’s decision determined that Dean was not legally eligible for a federal spousal survivor annuity for the sole reason that, by virtue of DOMA, 1 U.S.C.§ 7, Dean and Gerry did not have a “marriage” and Dean was not a “spouse” for purposes of the relevant statutes governing federal spousal survivor annuities.
174. Judge Boulden also determined that Congressman Studds was not subject to a two-year election requirement for naming Dean as a survivor annuitant because “pursuant to DOMA, [Dean] was not ‘married’ to Congressman Studds and they were not ‘spouses.’”
175. Judge Boulden also found that Congressman Studds intended for Dean to have the benefit of a spousal survivor annuity if that was legally possible. As a result, even if an election by Congressman Studds were required, Judge Boulden determined that the election would be considered to have been timely made and that OPM would be estopped from relying on any asserted failure of election.
176. Judge Boulden’s Initial Decision of December 17, 2008, became final on January 21, 2009.
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177. Dean filed a timely appeal of the MSPB decision in the United States Court of Appeals for the Federal Circuit.
178. OPM did not appeal any aspect of the MSPB decision nor did it file a cross appeal in response to the appeal filed by Dean in the Federal Circuit.
179. The appellate process in the Federal Circuit on Dean’s appeal has been stayed pending disposition of this action.
180. Because the MSPB record demonstrated that Congressman Studds intended to provide Dean with all the federal employment-related benefits available to a spouse, Dean applied to OPM for federal health insurance benefits available to a surviving spouse by Express Mail letter dated January 20, 2009. Letter from Dean T. Hara to Retirement Operations Center, OPM (Jan. 20, 2009).
181. That letter, dated January 20, 2009, was delivered to the OPM Retirement Operations Center on January 21, 2009.
182. On April 6, 2009, OPM denied Dean’s claim for federal health insurance benefits as the surviving spouse of Congressman Studds on the grounds that Congressman Studds did not elect such benefits for Dean. Letter from Karl M. Bartley, Retirement Benefits Branch, Office of Personnel Management, to Dean Hara, April 6, 2009.
183. Dean requested reconsideration of this denial on May 4, 2009. Letter from Dean Hara to Office of Personnel Management, Retirement Operations Center, Boyers, PA, May 4, 2009.
184. OPM affirmed its initial denial of Dean’s claim for federal health insurance benefits as the surviving spouse of Congressman Studds in a final decision dated June 18, 2009. Letter from Joseph E. Miller, Jr., Legal Administrative Specialist, Disability,
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Reconsideration and Appeals Group, Office of Personnel Management, to Dean Hara, June 18, 2009.
Plaintiffs Mary Ritchie and Kathleen Bush 185. Plaintiff Mary Ritchie (“Mary”) is a State Police Sergeant with the
Commonwealth of Massachusetts. Mary has been with the State Police for more than 20 years, and she now specializes in supervising major crime scenes and crime scene forensics.
186. Plaintiff Kathleen Bush (“Kathy”) is a homemaker and an active volunteer in the local school system.
187. Mary and Kathy met through a mutual friend, at a Christmas party in 1989. They have been a committed couple for nearly 20 years, since 1990.
188. Mary and Kathy have two school-age children. Their sons are 8 and 11 years old, and both have hyphenated last names using their parents’ surnames.
189. When their first son was born, in 1999, Mary took a parenting leave to care for him. Later, Mary and Kathy reached a joint decision that Kathy would become a stayat-home parent. Prior to that time, Kathy had been successfully employed in sales and marketing for an established medical journal.
190. After 14 years together as a committed couple, Mary and Kathy were married at their home in Framingham on May 22, 2004 in strict and complete accordance with Massachusetts law. They married because “marriage” is what best described their family to each of them. Mary also expected to protect their family through employment benefits that their marriage would make available.
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191. Mary, Kathy and their two sons live together in a home that Mary and Kathy jointly own in Framingham. Both their sons attend the local public schools. Kathy serves on the Executive Board of the Parent Teacher Organization.
192. Kathy and Mary were born and raised in Framingham and Boston, respectively, and their family is very close with each other’s large extended families.
193. As a legally married couple, Mary and Kathy file their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.
194. Despite their legal marital status, and the requirement that they file their state income tax returns as Married with the Massachusetts Department of Revenue, they have not filed their annual federal income tax returns as Married Filing Jointly because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7.
195. Each year since their marriage in 2004, Mary has filed and paid federal taxes using the “Head of Household” filing status because of DOMA, 1 U.S.C. § 7. Kathy has had no income and thus has not been required to file any federal income tax return.
196. Each year since their marriage in 2004, Mary and Kathy have paid substantially more in federal income taxes as a result of their inability to file as Married Filing Jointly.
197. Additionally, for the tax year 2008, Mary sought to contribute money toward a spousal Individual Retirement Account (“IRA”) for the benefit of Kathy, just as any working spouse can do for a spouse who does not earn income. Due to their inability to file federal income tax returns as Married Filing Jointly, Mary cannot take the allowable
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tax deduction for her contribution to Kathy’s IRA account, even though other working spouses can take the same deduction.
198. For the tax year 2004, Mary and Kathy paid $1,054 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
199. For the tax year 2005, Mary and Kathy paid $2,703 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
200. For the tax year 2006, Mary and Kathy paid $4,390 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
201. For the tax year 2007, Mary and Kathy paid $ 6,371 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
202. For the tax year 2008, Mary and Kathy paid $ 4,548 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
203. Additionally, Mary is and has been unable to contribute on a tax-advantaged basis to Kathy’s IRA as is ordinarily permitted for spouses under Section 219(c) of the Internal Revenue Code, as amended (“I.R.C.”).
204. Having timely paid all their federal income taxes in full, Mary and Kathy later submitted amended federal income tax returns, on IRS Form 1040X, changing their filing status from Mary filing alone as Head of Household to Mary and Kathy filing together as Married Filing Jointly.
205. On April 13, 2008, Mary and Kathy submitted an amended federal income tax return to the IRS on IRS Form 1040X for the tax year 2004. The 2004 amended federal income tax return included a claim for refund in the amount of $1,054.
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206. Mary and Kathy attached to the IRS Form 1040X Amended Return the
Form 8275, Disclosure Statement and the 8275-R, Regulation Disclosure Statement
explaining their changes to the originally filed federal income tax return. In its entirety, the
Attachment states:
Attachment To Form 1040X, Part II, Explanation of Changes Form 8275, Disclosure Statement Form 8275-R, Regulation Disclosure Statement 2004 Tax Year
REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE “DEFENSE OF MARRIAGE ACT”
The taxpayer, Mary E. Ritchie, ID #[###-##-####], a spouse in a same-sex couple, was married under the laws of the Commonwealth of Massachusetts as of December 31, 2004. For the tax year of this amended return, the taxpayer filed a joint Massachusetts income tax return with her spouse as a married couple. However, in accordance with the federal law known as the Defense of Marriage Act (“DOMA”), the taxpayer filed an individual, federal income tax return as though she was unmarried. The taxpayer believes that being required to file as though she is unmarried amounts to unequal treatment compared to other married persons in Massachusetts. The taxpayer believes that her marriage, which is valid under Massachusetts law, should be respected for federal tax purposes, just like the Massachusetts marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that she should be allowed to file this amended joint return with her spouse and receive the refund shown herein.
In particular, if the taxpayer were able to file as married filing jointly, such a filing status would affect the following adjustments:
The federal tax as decreased from $5,331 to $4,277. The taxpayer previously paid $5,331 in federal income tax in her original return for this taxable year. As a result of these adjustments, the amount of overpayment is $1,054.
207. With each successive amended federal income tax return and refund claim
filed, Mary and Kathy included the same Explanation of Changes and Disclosure Statement
Attachment described in Paragraph 206, except that the tax year, amount of federal income
tax paid and amount of refund claimed were adjusted to reflect the proper tax year.
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208. Correspondence from the IRS confirms that the 2004 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Mary E. Ritchie (July 17, 2008).
209. In a reply dated July 17, 2008, the IRS disallowed Mary and Kathy’s refund claim for 2004. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “[t]he Federal Government does not recognize same sex marriages and differs with Massachusetts on this point.” Id.
210. On April 13, 2008, Mary and Kathy submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2005. The amended federal income tax return included a claim for refund in the amount of $2,703.
211. Correspondence from the IRS confirms that the 2005 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Mary E. Ritchie (July 18, 2008).
212. In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s refund claim for 2005. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “[t]he Federal Government does not recognize same sex marriages.” Id.
213. On April 13, 2008, Mary and Kathy submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2006. The amended federal income tax return included a claim for refund in the amount of $4,390.
214. Correspondence from the IRS confirms that the 2006 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008.
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Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Mary E. Ritchie (July 18, 2008).
215. In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “[c]urrent federal law does not recognize same sex marriage even if legally constituted by a sovereign state.” Id.
216. On February 25, 2009, Mary and Kathy submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2007. The amended federal income tax return included a claim for refund in the amount of $6,371.
217. Correspondence from the IRS confirms that the 2007 amended federal income tax return and accompanying refund claim were timely received on March 2, 2009. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Mary E. Ritchie (May 8, 2009).
218. In a reply dated May 8, 2009, the IRS disallowed Mary and Kathy’s refund claim for 2007. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” Id.
219. Despite having already replied with a disallowance to Mary and Kathy’s 2007 amended federal income tax return and claim for refund, the IRS sent another nearly identical reply dated May 26, 2009. Again, under the heading “Why We Cannot Allow Your Claim,” the IRS stated that “for federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.” The only difference between this disallowance letter and the May 8, 2009 disallowance letter was that they were signed
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by different IRS employees. Letter from Charles F. Clinton, A/Field Director, Accts. Management, IRS, Andover, MA to Mary E. Ritchie (May 26, 2009).
220. On November 10, 2009, Mary and Kathy submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2008. The amended federal income tax return included a claim for refund in the amount of $4,548.
221. Correspondence from the IRS confirms that the 2008 amended federal income tax return and accompanying refund claim were timely received on November 25, 2009. Letter from P.J. Bazick, Field Director, Accounts Manager, IRS, Andover, MA to Mary E. Ritchie (February 1, 2010).
222. In a reply dated February 1, 2010, the IRS disallowed Mary and Kathy’s refund claim for 2008. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “[t]here are currently no federal statutes that permit a same sex couple filing as Married Filing Jointly. Therefore this claim is not allowable.” Id.
223. Each disallowance that Mary and Kathy received from the IRS, for the years 2004, 2005, 2006, 2007 and 2008, notified them of their right to file suit in the United States District Court within two years from the date of the disallowance letters.
224. As a result of these IRS disallowances, and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Mary and Kathy have suffered specific and concrete financial harms to themselves and to their household. Specifically, the 2004, 2005, 2006, 2007 and 2008 disallowances have forced Mary and Kathy to pay $19,066 more in federal income taxes than a similarly situated different-sex married couple would have paid for those same tax years.
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225. The additional money that Mary and Kathy had to pay in federal income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings or toward supporting their two young sons.
226. Moreover, the specific and concrete financial harms to Mary and Kathy’s household continue to grow with each additional year that DOMA, 1 U.S.C. § 7, operates to bar the IRS from recognizing them as a married couple entitled to the Married Filing Jointly status.
Plaintiffs Melba Abreu and Beatrice Hernandez 227. Plaintiff Melba Abreu (“Melba”) is the chief financial officer for a non-
profit organization located in Boston, Massachusetts. 228. Plaintiff Beatrice Hernandez (“Beatrice”) is in the process of founding her
own web design practice. The company is presently in its initial stages and generates no income. Beatrice also is a writer and is currently in the process of writing two books.
229. Melba and Beatrice met in Miami in May 1987. They were both living and working in Miami at the time. Melba and Beatrice’s connection was immediate, and, consequently, they became a committed couple after a short period of time.
230. Shortly after they began their relationship, Melba and Beatrice moved together to Brooklyn, New York because Beatrice was accepted to a degree program at New York University. In November 1987, the day they moved into their first apartment in Brooklyn, Melba and Beatrice celebrated the beginning of their lives together by sharing a bottle of wine while unpacking a box of new dishes for their new home. In the simplicity of that day they knew that their commitment was their bond, and that together they would bear witness to each other’s lives. They view this as the beginning of their marriage.
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231. Melba and Beatrice have been a devoted couple for 23 years, since 1987. 232. On May 20, 2004, after 17 years as a committed couple, Melba and Beatrice were married in strict and complete accordance with Massachusetts law because they finally had the opportunity to affirm under law what they had long ago declared in their hearts. 233. Melba and Beatrice live in Boston, Massachusetts. In 2009, after 22 years as a committed couple, they finally realized their dream of owning a home together. They continue to look forward to a time when they can build a business together as well. 234. As a legally married couple, Melba and Beatrice file their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They have filed their state income tax returns as Married Filing Jointly since the 2004 tax year. 235. Despite their legal marital status, and the requirement that they file their state income tax returns as Married with the Massachusetts Department of Revenue, they have not filed their annual federal income tax returns as Married Filing Jointly because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7. 236. Each year since their marriage in 2004, Melba has filed and paid federal income tax returns using the Single filing status because of DOMA, 1 U.S.C. § 7. Beatrice has had no income and thus has not been required to file any federal income tax return. 237. Each year since their marriage in 2004, Melba and Beatrice have paid substantially more in federal income tax as a result of their inability to file as Married Filing Jointly.
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238. In the tax year 2004, Melba and Beatrice paid $4,687 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
239. For the tax year 2005, Melba and Beatrice paid $3,785 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
240. For the tax year 2006, Melba and Beatrice paid $5,546 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
241. For the tax year 2007, Melba and Beatrice paid $5,697 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
242. For the tax year 2008, Melba and Beatrice paid $ 5,644 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
243. Having timely paid all their federal income taxes in full, Melba and Beatrice later submitted amended federal tax returns, on IRS Form 1040X, changing their filing status from Melba filing alone as Single to Melba and Beatrice filing together as Married Filing Jointly.
244. On April 14, 2008, Melba and Beatrice submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2004. The 2004 amended federal income tax return included a claim for refund in the amount of $4,687.
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245. With their 2004 amended federal income tax return and refund claim, Melba and Beatrice attached the same Form 8275, Disclosure Statement and 8275-R, Regulation Disclosure Statement described in Paragraph 206, in order to explain their changes to the originally filed federal income tax return. Melba’s and Beatrice’s Explanation of Changes, Form 8275 Disclosure Statement and Form 8275-R, Regulation Disclosure Statement differs from that described in Paragraph 206 only insofar as it identifies different taxpayers, a different amount of federal income tax paid, and a different amount of refund claimed.
246. With each successive amended federal income tax return and refund claim filed, Melba and Beatrice included the same Explanation of Changes and Disclosure Statement Attachment described in Paragraph 206 and Paragraph 245, except that the tax year, amount of federal income tax paid, and amount of refund claimed were adjusted to reflect the proper tax year.
247. Correspondence from the IRS confirms that the 2004 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Melba Abreu (June 20, 2008)
248. In a reply dated June 20, 2008, the IRS disallowed Melba and Beatrice’s refund claim for 2004. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.” Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Melba Abreu (June 20, 2008).
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249. On April 14, 2008, Melba and Beatrice submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2005. The amended federal income tax return included a claim for refund in the amount of $3,785.
250. Correspondence from the IRS confirms that the 2005 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Melba Abreu (June 30, 2008).
251. In a reply dated June 30, 2008, the IRS disallowed Melba and Beatrice’s refund claim for 2005. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.” Id.
252. On April 14, 2008, Melba and Beatrice submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2006. The amended federal income tax return included a claim for refund in the amount of $ 5,546.
253. Correspondence from the IRS confirms that the 2006 amended federal income tax return and accompanying refund claim were timely received on April 15, 2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, MA, to Melba C. Abreu (June 30, 2008).
254. In a reply dated June 30, 2008, the IRS disallowed Melba and Beatrice’s refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “same sex marriages are not recognized at the Federal level.” Id.
255. On February 27, 2009, Melba and Beatrice submitted to the IRS an amended federal income tax return for the tax year 2007. The amended federal income tax return included a claim for refund in the amount of $5,697.
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256. Correspondence from the IRS confirms that the 2007 amended federal income tax return and accompanying refund claim were timely received by the IRS on March 12, 2009. Letter from Ivy S. McChesney, Field Director, Accounts Management, IRS, Philadelphia, PA, to Melba Abreu (April 20, 2009).
257. Although Melba and Beatrice filed their 2007 amended federal income tax return and claim for refund with the IRS office in Andover, MA, as they had done for all prior years since their marriage, the April 20, 2009 letter from the IRS to Melba responding to the 2007 claim was generated by the Philadelphia, PA IRS office.
258. The April 20, 2009 letter from the IRS failed to answer Melba and Beatrice’s 2007 amended federal income tax return and claim for refund. Instead, the letter stated that “[w]e cannot finish processing your claims until we receive supporting information for each item you asked us to change. In general your filing status depends on whether you are considered unmarried or married. For federal purposes, a marriage means only a legal union between a man and a woman as husband and wife.” The IRS letter asked Melba and Beatrice to send additional information regarding their claim within 30 days from the date of their letter. Letter from Ivy S. McChesney, Field Director, Accounts Management, IRS, Philadelphia, PA, to Melba Abreu (April 20, 2009).
259. Melba and Beatrice timely complied with the IRS request by resubmitting their 2007 amended federal income tax return and claim for refund together with a cover letter restating their request to be treated as married for purposes of federal income tax law. Melba Abreu and Beatrice Hernandez letter to the IRS Philadelphia, PA (May 4, 2009).
260. In a letter dated June 9, 2009, the IRS acknowledged receipt of Melba and Beatrice’s May 12, 2009 correspondence and their resubmission of materials, but replied
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that “we haven’t resolved this matter because we haven’t completed all the research necessary for a complete response. We will contact you again within 45 days to let you know what action we are taking. You don’t need to do anything now on this matter.” Letter from Ivy S. McChesney, Field Director, Accounts Management, IRS, Philadelphia, PA, to Melba Abreu (June 9, 2009).
261. To date, and despite the IRS’s statement by letter that they would be in contact again within 45 days from June 9, 2009, Melba and Beatrice have received no further correspondence and no answer from the IRS with respect to their 2007 amended federal income tax return and claim for refund.
262. Because the IRS did not render a decision on Melba and Beatrice’s 2007 amended federal income tax return and claim for refund within six months after they filed, their 2007 claim is deemed to have been denied and they may bring this action for refund in United States District Court. 26 U.S.C. § 6532(a)(1).
263. On November 10, 2009, Melba and Beatrice submitted to the IRS an amended federal income tax return on IRS Form 1040X for the tax year 2008. The amended federal income tax return included a claim for refund in the amount of $ 5,644.
264. Correspondence from the IRS confirms that the 2008 amended federal income tax return and accompanying refund claim were timely received on November 24, 2009. Letter from Rosalind C. Kochmanski, Field Director, Accounts Management, IRS, Fresno, CA, to Melba C. Abreu (February 25, 2010).
265. In a reply dated February 25, 2010, the IRS disallowed Melba and Beatrice’s refund claim for 2008. Id. Under the heading “Why We Cannot Allow Your Claim,” the IRS stated that: “[I]n determining the meaning of any Act of Congress, or of
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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. PUBLIC LAW 104-199.” Id.
266. Each disallowance letter that Melba and Beatrice received from the IRS, for years 2004, 2005 2006 and 2008 notified them of their right to file suit on their claims to recover federal income tax in the United States District Court within two years from the date of the disallowance letters. Also, the IRS’s failure to answer Melba and Beatrice’s 2007 amended federal income tax return and request for refund within 6 months constitutes a “deemed denial” which allows them to file suit on their 2007 claim to recover federal income tax in the United States District Court. 26 U.S.C. § 6532 (a) (1).
267. As a result of these 2004, 2005, 2006, and 2008 IRS disallowances and the 2007 deemed denial, and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Melba and Beatrice have suffered specific and concrete financial harms to themselves and to their household. Specifically, the 2004, 2005, 2006 and 2008 disallowances, together with the 2007 deemed denial, have forced Melba and Beatrice to pay $ 25,359 more in federal income taxes than a similarly situated different-sex married couple would have paid for those same tax years.
268. The additional money Melba and Beatrice had to pay in federal income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings for Melba and Beatrice’s future or provided for the start-up expenses of Beatrice’s practice.
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269. Moreover, the specific and concrete financial harms to Melba and Beatrice’s household continue to grow with each additional year that DOMA, 1 U.S.C. § 7, bars the IRS from recognizing them as a married couple entitled to the Married Filing Jointly status.
Plaintiffs Marlin Nabors and Jonathan Knight 270. Plaintiffs Marlin Nabors (“Marlin”) and Jonathan Knight (“Jonathan”) are a
committed couple who relocated together from Indiana to Massachusetts in 2006. 271. Marlin and Jonathan met more than 5 years ago in Indiana. They became a
committed couple within 6 months of dating. 272. Six months into their relationship, Marlin was offered a job at a Boston-area
college as a student services administrator. Marlin and Jonathan recognized this offer as an opportunity to advance Marlin’s career. Together, Marlin and Jonathan decided to relocate to Massachusetts so that Marlin could accept this job offer.
273. Upon moving with Marlin to the Boston area, Jonathan registered with a temporary agency and was eventually placed at a local medical school. He has been working there in a permanent position dealing with financial services since February 9, 2009.
274. After having been in a committed relationship for more than a year, Marlin and Jonathan realized that their relationship was “for life” and that they wanted to be together no matter what. They agreed that it was time to marry.
275. On October 26, 2006, Marlin and Jonathan were married at Newton City Hall with one friend present. Marlin and Jonathan were married in strict and complete accordance with Massachusetts law. Later that evening, they celebrated their marriage at their home with more than 25 friends and family members.
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276. In 2007, Marlin and Jonathan purchased a home together in Hyde Park, Massachusetts. This is the first time either of them has been a homeowner.
277. Since 2007, Marlin and Jonathan have been devoting energy and resources to fixing up and maintaining their new property. Jonathan’s father has visited from Indiana several times in order to assist them with home improvement projects.
278. As a legally married couple, Marlin and Jonathan file their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They have filed their state income tax returns as Married Filing Jointly since the 2006 tax year.
279. Despite their legal marital status, and the requirement that they file their state income tax returns as Married with the Massachusetts Department of Revenue, Marlin and Jonathan have not filed their annual federal income tax returns as Married Filing Jointly because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7.
280. Each year since their marriage in 2006, Marlin and Jonathan have filed and paid their federal income taxes separately, each using the Single filing status because of DOMA, 1 U.S.C. § 7.
281. Each year since their marriage in 2006, Marlin and Jonathan have paid substantially more in federal income taxes as a result of their inability to file as Married Filing Jointly.
282. For the tax year 2006, Marlin and Jonathan paid $1,286 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
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283. For the tax year 2007, Marlin and Jonathan paid $1,234 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
284. For the tax year 2008, Marlin and Jonathan paid $374 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly.
285. Having timely paid all their 2006, 2007 and 2008 federal income taxes in full, Marlin and Jonathan later submitted amended federal income tax returns, on IRS Form 1040X, changing their filing status from two individual taxpayers each filing as a Single filer to a married couple filing together as Married Filing Jointly.
286. On February 25, 2009, Marlin and Jonathan submitted an amended federal income tax return to the IRS on Form 1040X for the tax year 2006. The amended federal income tax return included a claim for refund in the amount of $1,286.
287. On February 25, 2009, Marlin and Jonathan submitted an amended federal income tax return to the IRS on Form 1040X for the tax year 2007. The amended federal income tax return included a claim for refund in the amount of $1,234.
288. On November 11, 2009, Marlin and Jonathan submitted an amended federal income tax return to the IRS on Form 1040X for the tax year 2008. The amended federal income tax return included a claim for refund in the amount of $374.
289. With their 2006, 2007 and 2008 amended federal income tax returns and refund claims, Marlin and Jonathan attached the same Form 8275, Disclosure Statement and 8275-R, Regulation Disclosure Statement described in Paragraph 206, in order to explain their changes to the originally filed federal income tax returns. Marlin’s and
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Jonathan’s Explanation of Changes, Form 8275 Disclosure Statements and Form 8275-R, Regulation Disclosure Statements differ from those described in Paragraph 206 only insofar as they identify different taxpayers, different amounts of federal income tax paid, and different amounts of refund claimed.
290. In a notice received on May 15, 2009, but dated May 18, 2009, the IRS noted that it was changing Marlin and Jonathan’s 2007 filing status to Married Filing Jointly, and further noted an “Amount to be refunded to you” of $1,234.
291. Shortly thereafter, Marlin and Jonathan received a joint refund check for $1,234 from the IRS.
292. Because Marlin and Jonathan believe that this 2007 refund check was issued in error and in violation of DOMA, § 3, they set the refund check aside and did not cash it.
293. Counsel for Marlin and Jonathan contacted the IRS Customer Service Office by telephone on May 18, 2009 to address the refund check. Counsel described the situation and also inquired about the then pending 2006 amended federal income tax return and refund claim. Counsel spoke with two IRS representatives who confirmed that the 2007 and 2006 amended federal income tax returns and refund claims had been approved, but the representatives were unable to do anything further. They could not re-open the returns or mark them to be re-examined for error.
294. On May 20, 2009, counsel sent a letter to the IRS Andover Service Center on behalf of Marlin and Jonathan. Counsel notified the IRS of the 2007 refund check already received and the expected 2006 refund check and stated that “[i]t is our understanding that the Taxpayers’ claim for a filing status change and refund should have
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been denied pursuant to DOMA, and we can arrange for the Taxpayers to return the refund check they have received.”
295. The IRS Andover acknowledged receipt of the May 20, 2009 letter via return receipt dated June 12, 2009.
296. In a second notice of refund dated May 25, 2009, the IRS issued a second joint refund check for $1,286 relating to Marlin and Jonathan’s 2006 amended federal income tax return and refund claim.
297. Because Marlin and Jonathan believe that this 2006 refund check was also issued in error and in violation of DOMA, § 3, they set the check aside and did not cash it.
298. In a letter dated October 28, 2009, the IRS reversed its earlier decisions as to 2006 and 2007, stating that “[t]he federal government does not recognize same sex marriage and does not allow a filing status of joint for partners of the same sex.” The IRS requested that Marlin and Jonathan return the erroneously issued refund checks, which they promptly did. Letter from Charles F. Clinton, A/Field Director, Accounts Management, IRS, Andover, MA, to Marlin Nabors and Jonathan Knight (October 28, 2009).
299. To date, Marlin and Jonathan have received no answer from the IRS to their 2008 amended federal income tax return and claim for refund.
300. Because the IRS did not render a decision on Marlin and Jonathan’s 2008 amended federal income tax return and claim for refund within six months after they filed, their 2008 claim is deemed to have been denied and they may bring this action for refund in United States District Court. 26 U.S.C. § 6532(a)(1).
301. The October 28, 2009, disallowance letter that Marlin and Jonathan received from the IRS for the years 2006 and 2007 notified them of their right to file suit on their
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claims to recover federal income tax in the United States District Court within two years from the date of the disallowance. Also, the IRS’s failure to answer Marlin and Jonathan’s 2008 amended federal income tax return and request for refund within 6 months constitutes a “deemed denial” which allows them to file suit on their 2008 claim to recover federal income tax in the United States District Court. 26 U.S.C. § 6532 (a) (1).
302. As a result of the 2006 and 2007 IRS disallowances and the 2008 deemed denial, and solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Marlin and Jonathan have suffered specific and concrete financial harms to themselves and to their household. Specifically, in the 2006, 2007 and 2008 tax years Marlin and Jonathan were forced to pay $2,894 more in federal income taxes than a similarly situated different-sex married couple would have paid for those same tax years.
303. The additional money that Marlin and Jonathan had to pay in federal income taxes because of DOMA, 1 U.S.C. § 7, could have gone into household expenses or savings for their future.
304. Moreover, the specific and concrete financial harms to Marlin and Jonathan’s household continue to grow with each additional year that DOMA, 1 U.S.C.
§ 7, bars the IRS from recognizing them as a married couple entitled to the Married Filing Jointly status.
Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman 305. Plaintiff Mary Bowe-Shulman (“Mary”) is an attorney employed by the
Commonwealth of Massachusetts. 306. Plaintiff Dorene Bowe-Shulman (“Dorene”) is a self-employed licensed
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acupuncturist, Dorene worked as a database manager for several non-profit organizations in the Boston area. Dorene also spent time as the primary caretaker and stay-at-home parent for the two daughters she and Mary have together, who are now 8 and 11 years old.
307. Mary and Dorene met in Somerville in 1995 while they were both participating in the same book group. They have been a committed couple since that time and have now been together for 15 years.
308. On August 9, 1997, Mary and Dorene had a commitment ceremony that was attended by family and friends. It was a very special event in their family and signified their lifelong bond.
309. After 9 years together as a committed couple, and with their two daughters at their side, Mary and Dorene were legally married at their home in Somerville, Massachusetts on May 23, 2004. Mary and Dorene were married in strict and complete accordance with Massachusetts law.
310. Mary, Dorene and their two daughters live together in a home that Mary and Dorene jointly own in Acton, Massachusetts. Mary’s mother also lives with them.
311. Mary and Dorene are active in the Acton community, where both of their daughters attend the local public schools and play soccer in the town’s youth league.
312. Immediately after their marriage, Mary added Dorene to her family health insurance plan provided by Mary’s employer, the Commonwealth of Massachusetts. Previously, they were unable to add Dorene to the plan because she was not recognized as a legal spouse. Their two daughters had already been on Mary’s family health insurance plan.
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313. For Dorene to have access to quality affordable health insurance is particularly important to their family because Dorene is a two-time cancer survivor, and her own mother died very young from cancer.
314. Several months after adding Dorene to her family health insurance plan, Mary received a paycheck that was approximately $1,000 less than her regular paycheck. After meeting with her employer’s Human Resources representative, Mary learned that she was obliged to pay federal income taxes on the value of Dorene’s health insurance coverage because, by virtue of DOMA, 1 U.S.C. § 7, she was unable to claim an exclusion from taxable income for the value of employer-provided health insurance coverage provided to her spouse. In the ordinary course, the value of employer-provided health coverage to an employee’s spouse is treated as a pre-tax benefit and is excluded from the participating employee’s federally taxable income. 26 U.S.C. § 106; 26 CFR
§ 1.106-1. 315. The first decreased paycheck Mary received represented the cumulative
effect of several months of this federal taxation. Subsequently, additional imputed income was added to each of Mary’s bi-weekly paychecks, forcing her to pay higher federal income taxes as a result of the additional amounts.
316. As a legally married couple, Mary and Dorene file their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.
317. Despite their legal marital status, and the requirement that they file their state income tax returns as Married with the Massachusetts Department of Revenue, Mary and Dorene have not filed their annual federal income tax returns as Married Filing Jointly
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because of the federal government’s non-recognition of their marriage pursuant to DOMA, 1 U.S.C. § 7.
318. Each year since their marriage in 2004, Mary has filed and paid federal taxes using the “Head of Household” filing status. Dorene has filed her federal income tax returns using the “Single” filing status.
319. Each year since their marriage, Mary has been forced to pay additional federal income taxes on the value of the health insurance coverage she carries for Dorene. The value of the health insurance coverage is added to Mary’s income as “imputed income,” forcing her to pay federal income tax on a typically nontaxable employee benefit, employer-provided spousal health insurance.
320. For the tax year 2006, Mary and Dorene were forced to pay $3,332 more in federal income tax than they would have paid had they been permitted to file as Married Filing Jointly. Had they been permitted to file as Married Filing Jointly, Mary would not have had to pay federal income tax on imputed income attributable solely to the value of Dorene’s spousal health insurance.
321. Having timely paid all their 2006 federal income taxes in full, Mary and Dorene later submitted an amended federal income tax return for 2006 on IRS Form 1040X, changing their filing status from Mary filing as Head of Household and Dorene filing as Single, to Mary and Dorene filing together as Married Filing Jointly.
322. In their 2006 amended federal income tax return, Mary and Dorene excluded the imputed income attributable to the value of Dorene’s spousal health insurance, since employer-sponsored health care benefits provided to an employee’s spouse are not taxable under the Internal Revenue Code.
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323. With their 2006 amended federal income tax return and refund claim, Mary and Dorene attached the same Form 8275, Disclosure Statement and 8275-R, Regulation Disclosure Statement described in Paragraph 206, in order to explain their changes to the originally filed federal income tax returns. Mary’s and Dorene’s Explanation of Changes, Form 8275 Disclosure Statement and Form 8275-R, Regulation Disclosure Statement differ from those described in Paragraph 206 only insofar as they identify different taxpayers, a different amount of federal income tax paid and a different amount of refund claimed.
324. Mary and Dorene submitted their 2006 amended federal income tax return and refund claim to the IRS Andover Service Center on January 26, 2009.
325. In a letter from the IRS Andover office dated June 10, 2009, the IRS acknowledged receiving Mary and Dorene’s 1040X amended income tax return and refund claim. However, the IRS informed Mary and Dorene that “we are unable to determine if your problem was resolved satisfactorily.” The June 10, 2009 letter directed Mary and Dorene to resubmit their information if the “inquiry has not been resolved.” Letter from IRS Andover, MA to Mary Bowe (June 10, 2009).
326. On June 22, 2009, Mary and Dorene replied to the IRS Andover’s June 10, 2009 letter, informing the IRS that it had not yet resolved or otherwise responded to their 2006 amended federal income tax return or refund claim. Attached to their June 22, 2009 reply, Mary and Dorene resubmitted copies of all the documents originally submitted on January 26, 2009, as well as a copy of the postal receipt showing the original mailing date. Letter from Mary and Dorene Bowe-Shulman to the IRS, Andover, MA (June 22, 2009).
327. In the June 22, 2009 letter replying to the IRS inquiry, Mary and Dorene stated that “if we are not notified of the IRS decision in writing within 6 months from the
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original filing date of January 26, 2009, we understand that we are free to file a refund suit in U.S. District Court as set forth in Code Section 6352(a)(1).” Letter from Mary and Dorene Bowe-Shulman to the IRS, Andover, MA (June 22, 2009).
328. Solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Mary and Dorene have suffered specific and concrete financial harms to themselves and to their household. Specifically, in the 2006 tax year Mary and Dorene were forced to pay $3,332 more in federal income taxes than a similarly situated heterosexual married couple would have paid for that same tax year. Additionally, for every year since their marriage they have been forced to pay, through taxes assessed against Mary, federal income tax on the value of Dorene’s spousal health insurance even though employer-sponsored health care benefits provided for an employee’s legal spouse are not taxable items under the Internal Revenue Code.
329. The additional money that Mary and Dorene had to pay in federal income taxes because of DOMA, 1 U.S.C. § 7, could have gone into household expenses or educational savings for their two daughters.
330. Moreover, the specific and concrete financial harms to Mary and Dorene’s household continue to grow with each additional year that DOMA, 1 U.S.C.
§ 7, bars the IRS from recognizing them as a married couple entitled to the Married Filing Jointly status, and with each additional year that Mary is forced to pay federal income tax on imputed income attributable to Dorene’s health insurance coverage.
Plaintiffs Bette Jo Green and Jo Ann Whitehead 331. Plaintiff Bette Jo Green (“Bette Jo”) retired in 2008 from a 35-year career as
a Labor and Delivery Nurse at a large, Boston-area hospital. She is 68 years old. 62

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332. Plaintiff Jo Ann Whitehead (“Jo Ann”) is a Community Garden Educator with a non-profit group in the Boston area. Jo Ann has worked in urban gardening for more than 10 years and previously worked in public school settings. Jo Ann is 68 years old.
333. Jo Ann and Bette Jo met in 1960 and were friends at Manchester College in Indiana. Jo Ann and Bette Jo graduated from Manchester College in 1964 and were roommates during their senior year.
334. After remaining in contact for more than 15 years, a time during which Bette Jo lived in Massachusetts and Jo Ann remained in Indiana, the two women visited each other on several occasions and then began a romantic relationship in 1981.
335. For 29 years, Bette Jo and Jo Ann have been in a committed relationship and have lived together in Jamaica Plain, Massachusetts, where they are deeply involved in the community.
336. Jo Ann and Bette Jo both volunteer in their community and are active in their Neighborhood Watch. Bette Jo takes their elderly neighbors on shopping trips, and both Bette Jo and Jo Ann help at programs for local children and youth, including weekly summer barbecues.
337. Jo Ann and Bette Jo are both cancer survivors. Jo Ann survived a difficult fight with bone cancer, but she had to reduce her working hours because of ongoing fatigue. Bette Jo suffered from both uterine and cervical cancer. Both women have been cancer free for many years but remain conscious of the risk of recurrence.
338. Jo Ann and Bette Jo have many supportive family members, primarily in the Midwest, where they make annual visits to spend time with their families.
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339. After 23 years as a committed couple, Bette Jo and Jo Ann married in the
garden at their home in Jamaica Plain, Massachusetts on June 7, 2004, in strict and
complete accordance with Massachusetts law. Friends and neighbors attended their
wedding.
340. In February 2008, when she was 66 years old, Jo Ann applied for and began
receiving Social Security retirement benefits based on her own Social Security earnings
record. Jo Ann is currently 68 years old and continues to receive Social Security retirement
benefits based on her own earnings record.
341. In February 2008, at the age of 65 years and 10 months and in anticipation
of her retirement from nursing, Bette Jo applied for and began receiving Social Security
retirement benefits on her own earnings record.
342. Social Security offers the option of receiving benefits based on the earnings
record of a spouse. This option is described by the Social Security Administration (“SSA”)
on its website, in relevant part, at http://www.ssa.gov/pubs/10035.html:
Spouse’s benefits A spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit. If you are eligible for both your own retirement benefits and for benefits as a spouse, we always pay your own benefits first. If your benefits as a spouse are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit. If you have reached your full retirement age, and are eligible for a spouse’s or ex-spouse’s benefit and your own retirement benefit, you may choose to receive only spouse’s benefits and continue accruing delayed retirement credits on your own Social Security record. You may then file for benefits at a later date and receive a higher monthly benefit based on the effect of delayed retirement credits.
343. On March 26, 2008, Jo Ann appeared in person at the Boston regional office
of the SSA and applied for the Social Security spousal benefit based on Bette Jo’s earnings 64

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record, because Jo Ann recognized that she would receive a higher monthly benefit amount if she drew on the spousal benefit rather than solely on her own earnings record.
344. If the SSA had permitted Jo Ann to receive spousal benefits based on Bette Jo’s earnings record, Jo Ann could have delayed her retirement age for purposes of Social Security. A later Social Security retirement age could increase Jo Ann’s own retirement benefits.
345. In a letter dated April 4, 2008, the SSA denied Jo Ann’s claim for spousal benefits. Letter from Judy Bernstein, Field Officer Manager, SSA, Boston, MA, to Jo Ann Whitehead (Apr. 4, 2008). The letter stated that: “Since the Defense of Marriage Act prohibits SSA from finding that your [sic] and the insured were married for benefit purposes, you are not eligible for Spouse’s Benefits.” Id.
346. Jo Ann filed a timely Request for Reconsideration on May 19, 2008. Form SSA-561-U2 (9-2007) ef (9-2007) (May 19, 2008). In her Request, she wrote: “I am appealing because I should receive the spousal retirement benefit. I have been married under Massachusetts law since June 7, 2004. Since DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage and it treats me differently from other married people in Massachusetts, I believe DOMA [1 U.S.C. § 7] is unconstitutional.” Id.
347. The SSA did not respond to Jo Ann’s Request for Reconsideration until January 17, 2009, Letter from Phyllis M. Smith, Assistant Regional Commissioner, Great Lakes Processing Center Operations, SSA, Chicago, IL, to Jo Ann Whitehead (Jan. 17, 2009), and then did so only after Jo Ann sought the assistance of one of her Senators. Letter from Edward M. Kennedy, United States Senator, Boston, MA, to Jo Ann
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Whitehead (Nov. 10, 2008). Eight months elapsed between when Jo Ann filed her Request for Reconsideration and when the SSA finally responded with a denial.
348. In the SSA’s written denial of Jo Ann’s Request for Reconsideration dated January 17, 2009, it stated that it looks to the laws of the applicant’s state of residence in determining marital status. Letter from Phyllis M. Smith to Jo Ann Whitehead (Jan. 17, 2009). It further noted that “[o]n May 17, 2004, Massachusetts became the first state to legalize same-sex marriages.” Id.
349. However, the SSA’s denial letter went on to cite DOMA, 1 U.S.C. § 7, for the proposition that marriage for federal purposes means only a legal union between one man and one woman as husband and wife and stated that therefore: “for all benefit purposes, SSA does not recognize such individual as the spouse of the [number holder.]” Id.
350. On February 2, 2009, Jo Ann went to her local SSA office in Roxbury, Massachusetts and requested, in writing, the Expedited Appeals Process (“EAP”). Letter from Jo Ann Whitehead to SSA, Roxbury, MA (Feb. 2, 2009).
351. On March 18, 2009, Jo Ann received a letter from the SSA informing her that it had reviewed her claim for benefits a second time and concluded that “[t]he denial of benefits is based on our previous decision.” Letter from Phyllis M. Smith to Jo Ann Whitehead (Mar. 18, 2009). The letter also cited DOMA, 1 U.S.C. § 7, for the proposition that marriage for federal purposes means only a legal union between one man and one woman as husband and wife and stated that therefore: “for all benefit purposes, SSA does not recognize such individual as the spouse of the [number holder.]” Id. Jo Ann responded
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to this second denial by directing the SSA to her EAP request dated February 2, 2009. Letter from Jo Ann Whitehead to SSA, Chicago, IL (May 5, 2009).
352. On Saturday May 16, 2009, Jo Ann received three copies of the unsigned EAP Agreement, which was titled “Memorandum of Agreement Between Jo Ann Whitehead and the Social Security Administration.” The EAP Agreement states that, pursuant to its terms, “the reconsideration determination SSA rendered is final for purposes of section 205(g) of the Social Security Act (42 U.S.C. 405).”
353. On May 18, 2009, pursuant to the SSA’s instructions, Jo Ann signed and returned to the SSA Boston office all three copies of the EAP Agreement.
354. On June 8, 2009, Jo Ann received a fully-executed EAP Agreement from the SSA’s Baltimore, Maryland headquarters. Memorandum of Agreement between Jo Ann Whitehead and the Social Security Administration, signed by Jo Ellen Felice, Associate Commissioner, Office of Income Security Programs, Social Security Administration (May 27, 2009). According to the EAP Agreement, the SSA’s reconsideration (and denial) of Jo Ann’s claim for benefits constitutes a final administrative determination. Id.
355. Jo Ann and Bette Jo have suffered specific and concrete financial harm as a result of the denial of spousal benefits. In addition to the harm from the denial of the spousal benefit, Jo Ann and Bette Jo have an ongoing concern, reasonable in light of their health travails, about Jo Ann’s lack of access to the Social Security survivor benefit in the event that Bette Jo predeceases her.
356. As Bette Jo and Jo Ann plan and budget yearly expenses, there is the concern that if Bette Jo died before Jo Ann, Jo Ann would have no safety net and would not
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be able to meet the costs of living, including maintaining her home, as well as paying for food and non-insured medical care. Without the survivor benefit, Jo Ann would likely live in enforced isolation from their family and friends in the Midwest, as the cost of traveling would be prohibitive.
Plaintiff Randell Lewis-Kendell 357. Plaintiff Randell Lewis-Kendell (“Randy”) is the surviving spouse of a 30-
year committed relationship with Robert Lewis-Kendell (“Robert”). 358. Robert died in November 2007, at age 72, after a long battle with recurrent
colon cancer. 359. Randy and Robert began their relationship in 1977 while both were living in
Connecticut. Their relationship was rooted in deep love and close friendship. 360. Their families and community welcomed Randy and Robert’s relationship
from early on. Robert’s now adult children have always treated Randy as their stepfather, and now their children consider Randy to be their “grandpa.”
361. Robert grew up in a Boston suburb and was eager to return to Massachusetts when the opportunity arose. In 1985, Randy and Robert moved together to Massachusetts, and Robert began working in fundraising and development. Randy worked in retail and became a manager at several stores.
362. In 1993, Randy and Robert realized their mutual dream of relocating to a small town on Cape Cod when they purchased a gift shop in Harwich Port, Massachusetts.
363. Randy and Robert quickly became an integral part of the local business community and also became active in their local church.
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364. Initially, Randy and Robert rented a house in West Dennis, Massachusetts, while they were building up their gift shop business. They reinvested all the money they earned in the business and so, initially, they could not afford to purchase their own home in Harwich Port.
365. In 2006, however, Robert and Randy purchased a small condominium together in Harwich Port. Randy continues to live in that condominium.
366. In 2002, Robert was diagnosed with colon cancer. Initially, he was treated with surgery and monitoring but then, in 2004, there was a recurrence, and Robert’s prognosis became far more serious. In 2004, Robert began chemotherapy treatments.
367. Randy took Robert to every medical appointment, including appointments in Boston. Randy sat with Robert through every treatment and administered needed medications at home. When necessary, Randy would close the gift shop to care for Robert. As Robert’s condition worsened, Randy stayed with him at all times and took care of him.
368. Randy and Robert married on May 21, 2004, in Harwich Port, Massachusetts, in strict and complete accordance with Massachusetts law. They married to solidify their lifelong commitment. At the time of their marriage, they were both well aware of the serious nature of Robert’s illness.
369. After his long battle with colon cancer, Robert died on November 14, 2007, with Randy at his side.
370. At the time of his death, Robert was receiving Social Security retirement benefits in the amount of $1,161 per month based on his lifelong earnings record. This benefit was a critical source of support for the couple.
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371. Since Robert passed away, Randy has lived in difficult economic circumstances. The challenging economy and reduced tourism have negatively affected sales at the gift shop. He has fallen behind on some bills.
372. Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and § 404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the surviving spouse was “living in the same household with the deceased at the time of death,” if the surviving spouse applies for the benefit “prior to the expiration of two years after the date of death …,” and if the deceased spouse was “fully or currently insured” at the time of death.
373. When Randy made Robert’s funeral arrangements, the funeral director informed Randy about the $255 lump-sum death benefit and mentioned that it could help with funeral expenses. He made an application on Randy’s behalf, as the funeral home does for other clients.
374. On December 21, 2007, Randy again applied for the lump-sum death benefit by appearing in person at the SSA office in Hyannis, Massachusetts and submitting a written application. Form SSA-8-F4 (5-2003) EF (02-2006).
375. The SSA denied Randy’s claim by letter dated April 16, 2008. Letter from G.A. Sorrow, District Manager, SSA, Worcester, MA, to Randell Lewis-Kendell (Apr. 16, 2008).
376. This letter stated that: “Since the Defense of Marriage Act prohibits SSA from finding that you and the insured were married for benefit purposes, you are not eligible for the lump sum death payment.” Id., at ¶ 2.
377. Randy timely filed a Request for Reconsideration on May 30, 2008. Form SSA-561-U2 (9-2007) ef (9-2007) (May 30, 2008).
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378. Randy’s Request for Reconsideration stated, “I am appealing because I should receive the lump-sum death benefit. I was married under Massachusetts law since May 21, 2004. My spouse, Robert Lewis-Kendell, died on November 14, 2007. Since DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage and it treats me differently from other married people in Massachusetts, I believe DOMA [1 U.S.C. § 7] is unconstitutional.” Id.
379. Randy did not receive any response to his Request for Reconsideration for several months. On October 23, 2008, nearly five months after Randy had made his Request for Reconsideration, he even visited the Hyannis office of the SSA to try to get a response. They told him that his request for the lump-sum benefit was in processing and out of the control of the local office.
380. Finally, in a letter dated November 19, 2008, the SSA denied Randy’s Request for Reconsideration. Letter from Anne Jacobosky, Assistant Regional Commissioner, Processing Center Operations, SSA, Northeast Program Service Center, Jamaica, NY, to Randell Lewis-Kendell (Nov. 19, 2008).
381. In its letter, the SSA wrote, “You are not entitled to benefits because We [sic] cannot consider you to have been married to Robert A. Lewis-Kendell[.]” Id., at 4.
382. In an explanation of its decision, the SSA cited DOMA, 1 U.S.C. § 7, for the statement that, under federal law, “a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex.” Id., at 5.
383. On December 31, 2008, Randy went to his local SSA office in Hyannis, Massachusetts and requested, in writing, the EAP. Letter from Randell Lewis-Kendell to SSA, Hyannis, MA (Dec. 31, 2008).
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384. On May 14, 2009, Randy received from the SSA office in Hyannis three copies of an unsigned EAP Agreement which was titled “Memorandum of Agreement Between Randell Lewis-Kendell and the Social Security Administration.” The EAP Agreement states that, pursuant to its terms, “the reconsideration determination SSA rendered is final for purposes of section 205(g) of the Social Security Act (42 U.S.C. 405).”
385. On May 16, 2009, pursuant to the SSA’s instructions, Randy signed and returned to the SSA Hyannis office all three copies of the EAP Agreement. With the signed EAP Agreements, Randy included a hand-written cover letter asking the SSA Hyannis office to inform him when they had sent the signed EAP Agreements to the SSA in Baltimore. Letter from Randy Lewis-Kendell to Hyannis SSA office (May 16, 2009).
386. On or about June 12 or 13, 2009, Randy received a fully-executed EAP Agreement from the SSA’s Baltimore, Maryland headquarters. Memorandum of Agreement between Randell Lewis-Kendell and the Social Security Administration, signed by Jo Ellen Felice, Associate Commissioner, Office of Income Security Programs, Social Security Administration (June 4, 2009). According to the EAP Agreement, the SSA’s reconsideration (and denial) of Randy’s claim for benefits constitutes a final administrative determination. Id.
387. Because Randy has been denied Social Security benefits that similarly situated individuals who have survived a spouse of a different sex routinely receive, Randy has suffered specific and concrete financial harm. Randy applied for this $255 death benefit and was denied. Additionally, Randy intends to apply for the Social Security widower/survivor benefit when he turns 60 and becomes age-eligible. Randy fears for his financial security in his later years if he does not receive the widower/survivor benefit.
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Plaintiff Herbert Burtis 388. Plaintiff Herbert Burtis (“Herb”) met John Ferris (“John”) in the late 1940s
while both attended Michigan State University. The two men were brought together by their mutual interest in classical music and had long careers as musicians.
389. The couple moved to New York City after John was accepted into a graduate program there. Herb transferred to Columbia University, where he worked parttime as the associate choirmaster while pursuing his own graduate studies. John worked as the choirmaster and organist at a church in New Jersey.
390. In 1958, John left New York to conduct the Harvard University choir, a position he held for 32 years, and to teach conducting at several schools. When John took the job at Harvard, Herb assumed John’s former position at the church in New Jersey.
391. The two men continued their loving relationship despite the distance between them. In 1961, Herb and John purchased a home in Sandisfield, Massachusetts, where they could be together when they did not have work responsibilities.
392. In 1979, Herb left his church position in New Jersey and moved to Massachusetts so that he and John could begin living together full time. During this time, Herb gave private music lessons to students locally and at studios he maintained in New York City and in New Jersey.
393. In 1990, John retired from Harvard University and began to collect Social Security benefits.
394. For many years thereafter, both men were deeply involved in teaching music. During this time, Herb continued to provide private music lessons to students, including at his studios in New York City and New Jersey.
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395. Herb and John were married by a justice of the peace at their home in Sandisfield, Massachusetts, on May 23, 2004, in strict and complete accordance with Massachusetts law. After 55 years together, they were already a family, but they hoped that marriage would increase their legal protections.
396. At the time they married, John’s longstanding struggle with Parkinson’s disease had intensified, and his health declined markedly over the next few years due to Parkinson’s and other medical problems.
397. Herb was the principal care-provider for John. He arranged for medical treatments and dealt with the many emergencies and other issues that arose as John’s condition worsened. They both preferred that John be at home, and Herb labored mightily to make that possible, although there were times when John needed to be hospitalized or to convalesce in a rehabilitation facility.
398. John had a stroke at the home he shared with Herb on July 3, 2008. 399. John died on August 1, 2008 at the Great Barrington Nursing and Rehabilitation Center in Great Barrington, Massachusetts. At the time of his death, he and Herb had been in a relationship for 60 years and had been married for more than four. 400. Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and § 404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the surviving spouse was “living in the same household with the deceased at the time of death,” if the surviving spouse applies for the benefit “prior to the expiration of two years after the date of death …,” and if the deceased spouse was “fully or currently insured” at the time of death. John was insured by the Social Security program when he died because he had contributed to the program while he worked.
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401. Under 42 U.S.C. § 402(f), widowers are entitled to insurance benefits equal to the primary insurance amount earned by their deceased spouses.
402. On October 20, 2008, Herb went to the Pittsfield, Massachusetts office of the SSA to file an application for the lump-sum death benefit and the Social Security survivor’s benefit based on John’s earnings record. Herb went to the SSA because he recognized that he would receive a higher monthly benefit amount if he drew on the survivor benefit rather than solely on his own earnings record.
403. A clerk of the SSA, Mrs. Rogers, refused to accept Herb’s application. Mrs. Rogers informed Herb that the Social Security administration does not recognize marriages between people of the same sex.
404. On November 6, 2008, Erik Hawley of the SSA contacted Herb to follow up on his request for Social Security benefits.
405. Mr. Hawley informed Herb that Social Security would not process Herb’s application, and that in any case it would be denied.
406. By letter dated November 6, 2008, the SSA informed Herb that his claim was denied. The letter stated:
An individual whose claim for benefits is based on a State recognized same-sex marriage or having the same status as spouse for State inheritance purposes cannot meet the statutory gender-based definition of husband, wife, widow, widower of the NH, including one who is divorced. Under the Defense of Marriage Act, 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. Therefore, for benefit purposes, SSA does not recognize such individual as the spouse of the NH. Letter from Jaime Nieves, District Manager, SSA, Pittsfield, MA, to Herbert Burtis (Nov. 6, 2008).
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407. Herb timely filed a Request for Reconsideration by mail in December, 2008. Form SSA-561-U2 (9-2007) ef (7-2008). Herb’s request stated: “I am appealing because I should receive the death benefit and widower’s benefit. I was married under Massachusetts law since May 23, 2004. My spouse, John Ferris, died on August 1, 2008. Since DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage, and it treats me differently from other married people in Massachusetts, I believe DOMA [1 U.S.C. § 7] is unconstitutional.” Id.
408. By letter dated January 20, 2009, the SSA informed Herb that its letter “supplements our prior response of November 6, 2008” and advised him that he could appeal if he believed that “this revised and reconsidered determination is not correct.” Letter from P.M. Smith, Assistant Regional Commissioner, Processing Center Operations, SSA, Great Lakes Program Service Center, Chicago, IL, to Herbert Burtis (Jan. 20, 2009).
409. On February 9, 2009, Herb requested the EAP for his claim for the lumpsum death benefit and survivor benefit in response to the SSA’s January 20, 2009 letter. Letter from Herbert Burtis to SSA, Pittsfield, MA (Feb. 9, 2009).
410. On or about May 15, 2009, Herb received from the SSA office in Pittsfield three copies of an unsigned EAP Agreement which was titled “Memorandum of Agreement Between Herbert Burtis and the Social Security Administration.” The EAP Agreement states that, pursuant to its terms, “the reconsideration determination SSA rendered is final for purposes of section 205(g) of the Social Security Act (42 U.S.C. 405).”
411. On May 15, 2009, pursuant to the SSA’s instructions, Herb signed and returned to the SSA Pittsfield office all three copies of the EAP Agreement. Several days later, Herb received a phone call from a representative of the SSA Pittsfield office
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informing him that they had received the EAP Agreements signed by Herb and were forwarding them on to SSA headquarters in Baltimore.
412. On or about June 29, 2009, Herb received a fully-executed EAP Agreement from the SSA’s Baltimore, Maryland headquarters. Memorandum of Agreement between Herbert Burtis and the Social Security Administration, signed by Jo Ellen Felice, Associate Commissioner, Office of Income Security Programs, Social Security Administration (May 27, 2009). According to the EAP Agreement, the SSA’s reconsideration (and denial) of Herb’s claim for benefits constitutes a final administrative determination. Id.
413. Because the SSA does not recognize Herb’s marriage, Herb has been denied the Social Security death benefit and the Social Security survivor’s benefit and thus has suffered specific and concrete financial harm.
COUNT I (Nancy Gill and Marcelle Letourneau
v. Office of Personnel Management, United States Postal Service and John E. Potter)
414. Plaintiffs Nancy Gill and Marcelle Letourneau repeat and reallege the allegations set forth in Paragraphs 12-13, 35-66, and 67-105 as if fully set forth herein.
415. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.
416. In 2004, Congress expanded health insurance benefits for federal employees by adopting the “Federal Employee Dental and Vision Benefits Enhancement Act of 2004.” Public Law 108-496.
417. The vision portion of the FEDVIP is a creature of federal statute, Chapter 89B of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8981-92.
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418. The FEHB Program and the FEDVIP Program extend to United States Postal employees. See 39 U.S.C. §1005(f).
419. Pursuant to Congressional authority, 5 U.S.C. § 8913, OPM prescribes all regulations to carry out the FEHB program.
420. The pertinent regulations promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations.
421. Under existing FEHB statutory and regulatory provisions, the spouse of a covered employee who has elected “Self and Family” coverage is automatically enrolled for health insurance purposes under the FEHB Program.
422. Under existing FEHB statutory and regulatory provisions, Nancy would be able to provide for health insurance coverage to her spouse Marcelle under the “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies health insurance coverage to a Postal Service employee’s spouse if that spouse is of the same sex.
423. Under existing FEHB statutory and regulatory provisions, Marcelle would receive health insurance coverage under Nancy’s “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies health insurance coverage to a Postal Service employee’s spouse if that spouse is of the same sex.
424. In addition to spousal coverage under the FEHB program, a Postal Service employee’s spouse can be covered under the employee’s HCFSA.
425. Pursuant to Congressional authority, 5 U.S.C. § 8992(a), OPM prescribes regulations to carry out FEDVIP.
426. The pertinent regulations promulgated by OPM are contained in Part 894 of Title 5 of the Code of Federal Regulations.
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427. Under FEDVIP statutory and regulatory provisions, a covered employee who has elected “Self and Family” enrollment for FEDVIP makes coverage available for all eligible family members. “Member of family” is defined in Chapter 89B, 5 U.S.C.
§ 8991(2), as having the same meaning as that term has for FEHB under Chapter 89, 5 U.S.C. § 8901(5), i.e., including the covered employee’s spouse.
428. Under existing FEDVIP statutory and regulatory provisions, Nancy would be able to enroll Marcelle in the vision coverage under the FEDVIP but for OPM’s application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance coverage to a Postal Service employee’s spouse if that spouse is the same sex as the employee.
429. Under existing FEDVIP statutory and regulatory provisions, Marcelle would be enrolled in Nancy’s enhanced vision coverage under the FEDVIP but for OPM’s application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance coverage to a Postal Service employee’s spouse if that spouse is of the same sex as the employee.
430. The disparity of treatment with regard to federal employment-related benefits available to Nancy and Marcelle is not mandated by DOMA, 1 U.S.C. § 7, but rather reflects an improper and overly narrow construction of the permissible bounds of OPM’s authority to extend coverage to family members.
431. All federal statutory provisions as to employment-related benefits that turn on “member of family,” “family” or “family members,” including but not limited to 5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of coverage availability but do not establish absolute ceilings or outer boundaries of coverage.
432. To the extent that the disparity of treatment with regard to federal employment-related benefits available to Nancy and Marcelle is, in fact, mandated by
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DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
433. An actual controversy exists between and among the parties.
COUNT II (Martin Koski and James Fitzgerald
v. Office of Personnel Management)
434. Plaintiffs Martin Koski and James Fitzgerald repeat and reallege the allegations set forth in Paragraphs 14-15, 35-66, and 106-136 as if fully set forth herein.
435. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.
436. Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.
437. The pertinent regulations promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations.
438. The FEHB Program extends to qualified annuitants of the Social Security Administration, including Martin. See 5 U.S.C. §§ 8901, 8905.
439. Under existing FEHB statutory and regulatory provisions, a qualified annuitant may elect “Self and Family” coverage and enroll his spouse for health insurance benefits under the FEHB program.
440. Under existing FEHB statutory and regulatory provisions, Martin would be able to enroll Jim in a “Self and Family” plan but for OPM’s application of DOMA, 1
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U.S.C. § 7, which denies spousal health insurance coverage to a retired federal employee’s spouse if that spouse is of the same sex.
441. Under existing FEHB statutory and regulatory provisions, Jim would be enrolled in Martin’s “Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a retired federal employee’s spouse if that spouse is of the same sex.
442. The disparity of treatment with regard to federal employment-related benefits available to Martin and Jim is not mandated by DOMA, 1 U.S.C. § 7, but rather reflects an improper and overly narrow construction of the permissible bounds of OPM’s authority to extend coverage to family members.
443. All federal statutory provisions as to employment-related benefits that turn on “member of family,” “family” or “family members,” including but not limited to 5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of coverage availability but do not establish absolute ceilings or outer boundaries of coverage.
444. To the extent that the disparity of treatment with regard to federal employment-related benefits available to Martin and Jim is, in fact, mandated by DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
445. An actual controversy exists between and among the parties.
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COUNT III (Dean Hara
v. Office of Personnel Management
and Michael J. Astrue) 446. Plaintiff Dean Hara repeats and realleges the allegations set forth in Paragraph 16, 35-66, and 137-184 as if fully set forth herein. 447. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq. 448. Pursuant to Congressional authority, 42 U.S.C. § 902, defendant Michael J. Astrue enforces federal law relative to eligibility of benefits through his supervision of the SSA. 449. The pertinent regulations promulgated by the SSA are contained in Parts 400 to 499 of Title 20 of the Code of Federal Regulations. 450. Under 42 U.S.C. § 402(i), the widower of a deceased person shall receive a lump-sum benefit of $255 after the death of his spouse. 451. Under existing Social Security statutory and regulatory provisions, Dean would be entitled to the $255 death benefit as the legal surviving spouse of Gerry Studds but for DOMA, 1 U.S.C. § 7, which denies the benefit to an otherwise qualifying surviving spouse if that spouse is the same sex. 452. DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States. 453. Dean’s constitutional claims are ripe for review by this Court.
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454. Dean’s application for the lump-sum benefit raises no disputed issues of fact.
455. DOMA, 1 U.S.C. § 7, alone bars Dean from receiving the lump-sum benefit. 456. It would be futile for Dean to pursue any further administrative process, because the SSA’s position that DOMA, 1 U.S.C. § 7, bars him from receiving the lumpsum death benefit is the sole basis for its denial of his claim and raises a constitutional issue that is beyond the SSA’s purview. 457. The FEHB program is a creature of federal statute, Chapter 89 of Title 5 of the United States Code. See generally 5 U.S.C. § 8901 et seq. 458. Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code. 459. The pertinent regulations promulgated by OPM are contained in Part 890 of Title 5 of the Code of Federal Regulations. 460. Under FEHB statutory and regulatory provisions, the surviving spouse of a retired federal employee/annuitant is eligible to enroll in a federal health insurance program if, at the time of the annuitant’s death, the annuitant had elected “Self and Family” health insurance coverage and if the surviving spouse is also eligible for a spousal survivor annuity. 461. Under pertinent FEHB statutory and regulatory provisions and in light of the MSPB’s final decision in Dean Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to Dean, or, in the alternative, is deemed to have in fact elected for Dean, a spousal survivor annuity.
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462. Under pertinent FEHB statutory and regulatory provisions and in light of the MSPB’s final decision in Dean Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to Dean, or, in the alternative, is deemed to have in fact elected for Dean, his inclusion under federal health insurance coverage.
463. OPM is estopped under the MSPB’s final decision in Dean Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I-2, from enforcing any asserted requirement of election by Congressman Studds vis-à-vis “Self and Family” coverage.
464. Under pertinent FEHB statutory and regulatory provisions, Dean would be able to receive health insurance coverage but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies health insurance coverage to a federal employee’s surviving spouse if that surviving spouse is of the same sex.
465. The disparity of treatment with regard to FEHB health insurance available to Dean is not mandated by DOMA, 1 U.S.C. § 7, but rather reflects an improper and overly narrow construction of the permissible bounds of OPM’s authority to extend benefits to family members.
466. All federal statutory provisions as to FEHB health insurance that turn on “member of family” or “spouse,” including but not limited to 5 U.SC. §§ 8901, set general guidelines and minimum requirements of coverage availability but do not establish absolute ceilings or outer boundaries of coverage.
467. To the extent that a disparity of treatment with regard to the FEHB program is mandated by DOMA, 1 U.S.C. § 7, it creates a classification that treats similarly situated
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individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
468. Dean has made presentment of his claim for enrollment in the FEHB program.
469. Dean’s application for FEHB health insurance raises no disputed issues of fact.
470. DOMA, 1 U.S.C. § 7, alone bars Dean from receiving FEHB health insurance.
471. It would be futile for him to pursue further administrative remedies given OPM’s practice and policy of barring members of marriages between two individuals of the same sex from receiving FEHB benefits on the basis of DOMA, 1 U.S.C. § 7, including plaintiffs Nancy Gill and Martin Koski.
472. Review of this practice and policy raises a constitutional issue beyond the purview of OPM.
473. An actual controversy exists between and among the parties.
COUNT IV (Mary Ritchie and Kathleen Bush
v. United States of America) 474. Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the allegations set forth in Paragraphs 17-18, 35-66, and 185- 226 as if fully set forth herein. 475. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction under 28 U.S.C. § 1346 (a)(1).
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This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
476. Mary and Kathy seek recovery of federal income tax for the taxable year ending December 31, 2004.
477. On or before April 15, 2005, Mary timely filed with the IRS Service Center at Andover, Massachusetts a federal income tax return for the year 2004 using the Head of Household filing status. Mary timely paid federal income tax of $5,531 on account of this federal income tax return.
478. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
479. On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for a refund of federal income tax overpaid in the amount of $1,054, based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, rather than Mary and Kathy being permitted to file one federal income tax return as Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.
480. The IRS disallowed the claim by letter dated July 17, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
481. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples
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are forced to use an incorrect marital status. As a result of this disparity of treatment, Mary and Kathy paid $1,054 more in federal income tax in 2004 than a similarly situated different-sex married couple would have paid.
482. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT V (Mary Ritchie and Kathleen Bush
v. United States of America) 483. Plaintiffs Mary Ritchie and Kathleen Bush, repeat and reallege the allegations set forth in Paragraphs 17-18, 35-66, and 185-226 as if fully set forth herein. 484. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 485. Mary and Kathy seek recovery of federal income tax for the taxable year ending December 31, 2005. 486. On or before April 15, 2006, Mary timely filed with the IRS Center at Andover, Massachusetts a federal income tax return for the year 2005 using the Head of Household filing status. Mary timely paid federal income tax of $7,554 on account of this federal income tax return.
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487. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
488. On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for a refund of federal income tax overpaid in the amount of $2,703, based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, rather than Mary and Kathy being able to file on one federal income tax return as Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.
489. The IRS disallowed the claim by letter dated July 18, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
490. An individual married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $2,703 more in federal income tax in 2005 than a similarly situated different-sex married couple would have paid.
491. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it creates a classification that treats similarly situated individuals differently without justification in
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excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT VI (Mary Ritchie and Kathleen Bush
v. United States of America) 492. Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the allegations set forth in Paragraphs 17-18, 35-66, and 185-226 as if fully set forth herein. 493. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 494. Mary and Kathy seek recovery of federal income tax for the taxable year ending December 31, 2006. 495. On or before April 15, 2007, Mary timely filed with the IRS Service Center at Andover, Massachusetts a federal income tax return for the year 2006 using the Head of Household filing status. Mary timely paid federal income tax of $13,626 on account of this federal income tax return. 496. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60. 497. On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for a refund of federal income tax overpaid in the amount of $4,390, based
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on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, rather than Mary and Kathy Bush being able to file on one federal income tax return as Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.
498. The IRS disallowed the claim by letter dated July 18, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
499. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $4,390 more in federal income tax in 2006 than a similarly situated different-sex married couple would have paid.
500. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT VII (Mary Ritchie and Kathleen Bush
v. United States of America) 501. Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the allegations set forth in Paragraphs 17-18, 35-66, and 185-226 as if fully set forth herein.
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502. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
503. Mary and Kathy seek recovery of federal income tax for the taxable year ending December 31, 2007.
504. On or before April 15, 2008, Mary timely filed with the IRS Service Center at Andover, Massachusetts a federal income tax return for the year 2007 using the Head of Household filing status. Mary timely paid federal income tax of $20,358 on account of this federal income tax return.
505. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
506. On February 25, 2009, consistent with the 1958 Revenue Ruling, Mary and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for a refund of federal income tax overpaid in the amount of $6,371, based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, rather than Mary and Kathy being able to file on one federal income tax return as Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.
507. The IRS disallowed the claim by letter dated May 8, 2009. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
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508. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $6,371 more in federal income tax in 2007 than a similarly situated different-sex married couple would have paid.
509. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT VIII (Mary Ritchie and Kathleen Bush
v. United States of America)
510. Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the allegations set forth in Paragraphs 17-18, 35-66, and 185-226 as if fully set forth herein.
511. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
512. Mary and Kathy seek recovery of federal income tax for the taxable year ending December 31, 2008.
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513. On or before April 15, 2009, Mary timely filed with the IRS Service Center at Andover, Massachusetts a federal income tax return for the year 2008 using the Head of Household filing status. Mary timely paid federal income tax of $ 12,722 on account of this federal income tax return.
514. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
515. On November 9, 2009, consistent with the 1958 Revenue Ruling, Mary and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for a refund of federal income tax overpaid in the amount of $ 4,548 based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, rather than Mary and Kathy being able to file on one federal income tax return as Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.
516. The IRS disallowed the claim by letter dated February 1, 2010. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
517. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $4,548 more in federal income tax in 2008 than a similarly situated different-sex married couple would have paid.
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518. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States
COUNT IX (Melba Abreu and Beatrice Hernandez
v. United States of America) 519. Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege the allegations set forth in Paragraphs 19-20, 35-66, and 227-269 as if fully set forth herein. 520. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 521. Melba and Beatrice seek recovery of federal income tax for the taxable year ending December 31, 2004. 522. On or before April 15, 2005, Melba timely filed with the IRS Service Center in Andover, Massachusetts a federal income tax return for the year 2004 using the Single filing status. Melba timely paid federal income taxes of $16,306 on account of this federal income tax return. 523. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
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524. On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for refund of federal income tax overpaid in the amount of $4,687, based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and Beatrice being able to file on one federal income tax return as Married Filing Jointly.
525. The IRS disallowed the claim by letter dated June 20, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
526. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Melba Abreu and Beatrice Hernandez paid $4,687 more in federal income tax in 2004 than a similarly situated different-sex married couple would have paid.
527. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Melba and Beatrice, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
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COUNT X (Melba Abreu and Beatrice Hernandez
v. United States of America) 528. Melba Abreu and Beatrice Hernandez, repeat and reallege the allegations set forth in Paragraphs 19-20, 35-66, and 227-269 as if fully set forth herein. 529. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 530. Melba and Beatrice seek recovery of federal income tax for the taxable year ending December 31, 2005. 531. On or before April 15, 2006, Melba timely filed with the IRS Service Center in Andover, Massachusetts a federal income tax return for the year 2005 using the Single filing status. Melba timely paid federal income tax of $12,621 on account of this federal income tax return. 532. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60. 533. On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for refund of federal income tax overpaid in the amount of $3,785 based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and Beatrice being able to file on one federal income tax return as Married Filing Jointly.
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534. The IRS disallowed the claim by letter dated June 20, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
535. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Melba and Beatrice paid $3,785 more in federal income tax in 2005 than a similarly situated different-sex married couple would have paid.
536. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Melba and Beatrice, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XI (Melba Abreu and Beatrice Hernandez
v. United States of America) 537. Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege the allegations set forth in Paragraphs 19-20, 35-66, and 227-269 as if fully set forth herein. 538. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
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539. Melba and Beatrice seek recovery of federal income tax for the taxable year ending December 31, 2006.
540. On or before April 15, 2007, Melba timely filed with the IRS Service Center in Andover, Massachusetts a federal income tax return for the year 2006 using the Single filing status. Melba timely paid federal income tax of $24,467 on account of this federal income tax return.
541. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
542. On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for refund of federal income tax overpaid in the amount of $5,546 based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and Beatrice being able to file on one federal income tax return as Married Filing Jointly.
543. The IRS disallowed the claim by letter dated June 20, 2008. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
544. An individual married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of
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treatment, Melba and Beatrice paid $5,546 more in federal income tax in 2006 than a similarly situated different-sex married couple would have paid.
545. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Melba and Beatrice, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XII (Melba Abreu and Beatrice Hernandez
v. United States of America) 546. Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege the allegations set forth in Paragraphs 19-20, 35-66, and 227-269 as if fully set forth herein. 547. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 548. Melba and Beatrice seek recovery of federal income tax for the taxable year ending December 31, 2007. 549. On or before April 15, 2008, Melba timely filed with the IRS Service Center in Andover, Massachusetts a federal income tax return for the year 2007 using the Single filing status. Melba timely paid federal income tax of $25,363 on account of this federal income tax return.
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550. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
551. On February 25, 2009, consistent with the 1958 Revenue Ruling, Melba and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for refund of federal income tax overpaid in the amount of $ 5,697 based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and Beatrice being able to file on one federal income tax return as Married Filing Jointly.
552. The IRS did not issue a decision on Melba and Beatrice’s claim within the statutory six-month period. They are thus permitted to file their 2007 refund claim in this Court.
553. An individual married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Melba and Beatrice paid $5,697 more in federal income tax in 2007 than a similarly situated different-sex married couple would have paid.
554. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Melba and Beatrice, it creates a classification that treats similarly situated individuals differently without justification in
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excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XIII (Melba Abreu and Beatrice Hernandez
v. United States of America) 555. Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege the allegations set forth in Paragraphs 19-20, 35-66, and 227-269 as if fully set forth herein. 556. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 557. Melba and Beatrice seek recovery of federal income tax for the taxable year ending December 31, 2008. 558. On or before April 15, 2009, Melba timely filed with the IRS Service Center in Andover, Massachusetts a federal income tax return for the year 2008 using the Single filing status. Melba timely paid federal income tax of $25,613 on account of this federal income tax return. 559. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60. 560. On November 10, 2009, consistent with the 1958 Revenue Ruling, Melba and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover, Massachusetts, for refund of federal income tax overpaid in the amount of $5,644 based on
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the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and Beatrice being able to file on one federal income tax return as Married Filing Jointly.
561. The IRS disallowed the claim by letter dated February 25, 2010. The disallowance was solely because of DOMA, 1 U.S.C. § 7.
562. An individual married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Melba and Beatrice paid $5,644 more in federal income tax in 2008 than a similarly situated different-sex married couple would have paid.
563. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Melba and Beatrice, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XIV (Marlin Nabors and Jonathan Knight
v. United States of America) 564. Plaintiffs Marlin Nabors and Jonathan Knight, repeat and reallege the allegations set forth in Paragraphs 21-22, 35-66, and 270-304 as if fully set forth herein.
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565. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
566. Marlin and Jonathan seek recovery of federal income tax for the taxable year ending December 31, 2006.
567. On or before April 15, 2007, Marlin and Jonathan timely filed with the IRS Service Center in Andover, Massachusetts separate federal income tax returns for the year 2006, each using the Single filing status. Marlin and Jonathan timely paid federal income taxes of $8,255 in the aggregate on account of these federal income tax returns.
568. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
569. On February 25, 2009, consistent with the 1958 Revenue Ruling, Marlin and Jonathan filed an IRS Form 1040X with the IRS Service Center at Andover, Massachusetts, claiming a refund of federal income tax overpaid in 2006 in the amount of $1,286, based on the fact that they were married under Massachusetts law. Marlin and Jonathan stated that, because of DOMA, 1 U.S.C. § 7, they had been forced to file separately as Single, rather than being able to file on one federal income tax return as Married Filing Jointly.
570. Marlin and Jonathan received a refund check from the IRS for $1,286, plus interest, in violation of DOMA, 1 U.S.C. § 7, and did not cash it.
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571. On October 28, 2009, the IRS reversed its decision, disallowing Marlin and Jonathan’s 2006 claim solely on the basis of DOMA, 1 U.S.C. § 7, and requesting return of the refund check. Marlin and Jonathan promptly returned the 2006 refund check.
572. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Marlin Nabors and Jonathan Knight paid $1,286 more in federal income tax in 2006 than a similarly situated different-sex married couple would have paid.
573. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the 2006 federal income tax filing of Marlin and Jonathan, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XV (Marlin Nabors and Jonathan Knight
v. United States of America) 574. Plaintiffs Marlin Nabors and Jonathan Knight repeat and reallege the allegations set forth in Paragraphs 21-22, 35-66, and 270-304 as if fully set forth herein. 575. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.
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§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America.
576. Marlin and Jonathan seek recovery of federal income tax for the taxable year ending December 31, 2007.
577. On or before April 15, 2008, Marlin and Jonathan timely filed with the IRS Service Center in Andover, Massachusetts separate federal income tax returns for the year 2007, each using the Single filing status. Marlin and Jonathan timely paid federal income taxes of $10,089 in the aggregate on account of these federal income tax returns.
578. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
579. On February 25, 2009, consistent with the 1958 Revenue Ruling, Marlin and Jonathan filed an IRS Form 1040X with the IRS Service Center at Andover, Massachusetts, claiming a refund of federal income tax overpaid for 2007 in the amount of $1,234, based on the fact that they were married under Massachusetts law. Marlin and Jonathan stated that, because of DOMA, 1 U.S.C. § 7, they had been forced to file separately as Single, rather than being able to file on one federal income tax return as Married Filing Jointly.
580. Marlin and Jonathan received a refund check from the IRS for $1,234, plus interest, in violation of DOMA, 1 U.S.C. § 7, and did not cash it.
581. On October 28, 2009, the IRS reversed its decision, disallowing Marlin and Jonathan’s 2007 claim solely on the basis of DOMA, 1 U.S.C. § 7, and requesting return of the refund check. Marlin and Jonathan promptly returned the 2007 refund check.
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582. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of treatment, Marlin Nabors and Jonathan Knight paid $1,234 more in federal income tax in 2007 than a similarly situated different-sex married couple would have paid.
583. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the 2007 federal income tax filing of Marlin and Jonathan, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XVI (Marlin Nabors and Jonathan Knight
v. United States of America) 584. Plaintiffs Marlin Nabors and Jonathan Knight, repeat and reallege the allegations set forth in Paragraphs 21-22, 35-66, and 270-304 as if fully set forth herein. 585. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 586. Marlin and Jonathan seek recovery of federal income tax for the taxable year ending December 31, 2008.
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587. On or before April 15, 2009, Marlin and Jonathan timely filed with the IRS Service Center in Andover, Massachusetts separate federal income tax returns for the year 2006, each using the Single filing status. Marlin and Jonathan timely paid federal income taxes of $11,993 in the aggregate on account of these federal income tax returns.
588. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
589. On November 11, 2009, consistent with the 1958 Revenue Ruling, Marlin and Jonathan filed an IRS Form 1040X with the IRS Service Center at Andover, Massachusetts, claiming a refund of federal income tax overpaid in 2008 in the amount of $374, based on the fact that they were married under Massachusetts law. Marlin and Jonathan stated that, because of DOMA, 1 U.S.C. § 7, they had been forced to file separately as Single, rather than being able to file on one federal income tax return as Married Filing Jointly.
590. The IRS did not issue a decision on Marlin and Jonathan’s claim within the statutory six-month period. They are thus permitted to file their 2008 refund claim in this Court.
591. An individual married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of
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treatment, Marlin and Jonathan paid $374 more in federal income tax in 2008 than a similarly situated different-sex married couple would have paid.
592. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of Marlin and Jonathan, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XVII (Mary Bowe-Shulman and Dorene Bowe-Shulman
v. United States of America) 593. Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman repeat and reallege the allegations set forth in Paragraphs 23-24, 35-66, and 305-330 as if fully set forth herein. 594. This is an action for the recovery of federal income tax erroneously or illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C. § 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United States of America. 595. Mary and Dorene seek recovery of federal income tax for the taxable year ending December 31, 2006. 596. On or before April 15, 2007, Mary and Dorene each timely filed with the IRS Service Center in Andover, Massachusetts separate federal income tax returns for the year 2006. Mary filed her federal income tax return using the Head of Household filing
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status while Dorene used the Single filing status. Mary and Dorene timely paid federal income taxes of $13,879 in the aggregate on account of these federal income tax returns.
597. The IRS stated in a 1958 Revenue Ruling that for federal tax law purposes an individual is married if she or he is married under local law. Rev. Rul. 58-66, 1958-1 C.B. 60.
598. On January 26, 2009, consistent with the 1958 Revenue Ruling, Mary and Dorene filed an IRS Form 1040X with the IRS Service Center at Andover, Massachusetts, claiming a refund of federal income tax overpaid in the amount of $3,332, based on the fact that they were married under Massachusetts law. They stated that, because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household, and Dorene as Single, rather than Mary and Dorene being able to file on one federal income tax return as Married Filing Jointly. They further stated that, because of DOMA, 1 U.S.C. § 7, Mary was forced to pay federal income taxes on the value of the health insurance coverage provided by her employer to Dorene and that this imputed income contributed to their overpayment of federal income taxes.
599. The IRS did not issue a decision on Mary and Dorene’s claim within the statutory six-month period. They are thus permitted to file their 2006 refund claim in this Court.
600. An individual who is married to a person of a different sex is not forced to file his or her federal income tax returns as anything other than Married. Indeed, he or she is required to file using his or her legal marital status. Legally married same-sex couples are forced to use an incorrect marital status, which results in a different federal income tax assessment than if they had used their correct married status. As a result of this disparity of
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treatment, Mary Bowe-Shulman and Dorene Bowe-Shulman paid $3,332 more in federal income tax in 2006 than a similarly situated different-sex married couple would have paid. In addition, Mary and Dorene are forced to pay federal income taxes on the value of health insurance coverage provided by Mary’s employer to Dorene, which they would not pay if there were a similarly situated different-sex couple.
601. Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the 2006 federal income tax filing of Mary and Dorene, it creates a classification that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
COUNT XVIII (Jo Ann Whitehead and Bette Jo Green
v. Michael J. Astrue) 602. Plaintiffs Bette Jo Green and Jo Ann Whitehead repeat and reallege the allegations set forth in Paragraphs 25-26, 35-66, and 331-356 as if fully set forth herein. 603. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq. 604. Pursuant to 42 U.S.C. § 902, defendant Michael J. Astrue enforces federal law concerning eligibility for Social Security benefits through his supervision of the SSA. 605. The pertinent regulations promulgated by the SSA are contained in Parts 400 to 499 of Title 20 of the Code of Federal Regulations. 606. Under existing Social Security statutory and regulatory provisions, see 42 U.S.C. § 402(b), individuals who qualify for old-age insurance benefits are eligible to
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extend those benefits to their spouses. Pursuant to the Social Security Act, a spouse who applies for Social Security benefits at full retirement age and has a benefit lower than 50% of that of his or her spouse receives an amount equal to 50% of his or her spouse’s full retirement benefit.
607. As a person legally married under Massachusetts law, Bette Jo would be able to share the benefit of her earnings record with her spouse Jo Ann but for DOMA, 1 U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if that spouse is of the same sex.
608. As a person legally married under Massachusetts law, Jo Ann would be entitled to old-age insurance benefits from her spouse Bette Jo but for DOMA, 1 U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if that spouse is the same sex.
609. DOMA, 1 U.S.C. § 7, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
610. An actual controversy exists between and among the parties.
COUNT XIX (Randell Lewis-Kendell
v. Michael J. Astrue) 611. Plaintiff Randell Lewis-Kendell repeats and realleges the allegations set forth in Paragraphs 27, 35-66, and 357-387 as if fully set forth herein.
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612. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq.
613. Pursuant to Congressional authority, 42 U.S.C. § 902, defendant Michael J. Astrue enforces federal law relative to eligibility of benefits through his supervision of the SSA.
614. The pertinent regulations promulgated by the SSA are contained in Parts 400 to 499 of Title 20 of the Code of Federal Regulations.
615. Under existing federal law, 42 U.S.C. § 402(i), the widower of a deceased person shall receive a lump-sum benefit of $255 after the death of his spouse.
616. As a person legally married under Massachusetts law, Randy would receive the lump-sum death benefit authorized under the Social Security Act but for DOMA, 1 U.S.C. § 7, which denies the lump-sum death benefit to an individual who is married to someone of the same sex.
617. DOMA, 1 U.S.C. § 7, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
618. An actual controversy exists between and among the parties.
COUNT XX (Herbert Burtis
v. Michael J. Astrue) 619. Plaintiff Herbert Burtis repeats and realleges the allegations set forth in Paragraphs 28, 35-66, and 388-413 as if fully set forth herein.
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620. The Social Security Act is codified in Chapter 7 of Title 42 of the United States Code. See generally 42 U.S.C. §§ 301 et seq.
621. Pursuant to Congressional authority, 42 U.S.C. § 902, defendant Michael J. Astrue enforces federal law relative to eligibility of benefits through his supervision of the SSA.
622. The pertinent regulations promulgated by the SSA are contained in Parts 400 to 499 of Title 20 of the Code of Federal Regulations.
623. Under federal law, 42 U.S.C. § 402(i), the widower of a deceased person shall receive a lump-sum of $255 after the death of his spouse.
624. Herb’s claim for the lump-sum death benefit was denied because of DOMA, 1 U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to interpret the Social Security Act to deny benefits to persons married to spouses of the same sex.
625. As a legally married person under Massachusetts law, Herb would receive the lump-sum death benefit authorized under the Social Security Act, but for the SSA’s position that federal law—as applied by the SSA—precludes the grant of the lump-sum death benefit to an individual who is married to someone of the same sex.
626. DOMA, 1 U.S.C. § 7, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
627. Under federal law, 42 U.S.C. § 402(f), the widower of a deceased insured shall receive insurance benefits up to the primary insurance amount earned by his insured deceased spouse.
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628. Herb’s claim for the survivor benefit was denied because of DOMA, 1 U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to interpret the Social Security Act to deny benefits to persons married to spouses of the same sex.
629. As a person legally married under Massachusetts law, Herb would be entitled to the survivor benefit from his deceased spouse John but for DOMA, 1 U.S.C. § 7, which denies survivor benefits to a covered individual’s spouse if that spouse is of the same sex.
630. DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification with respect to Social Security benefits that treats similarly situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
631. An actual controversy exists between and among the parties.
PRAYERS FOR RELIEF
WHEREFORE, the plaintiffs pray that this Court: 1. Declare that the FEHB Program, the HCSFA, and the FEDVIP Program permit coverage of same-sex spouses under their authorizing statutes and regulations. 2. Declare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiffs. 3. Enjoin the defendants from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex.
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4. Issue an injunction ordering defendant Michael J. Astrue to review the applications for benefits of plaintiffs Jo Ann Whitehead, Randy Lewis-Kendell, Herb Burtis, and Dean Hara without regard to DOMA, 1 U.S.C. § 7.
5. Award plaintiffs Mary Ritchie and Kathleen Bush judgment in the amount of $19,066, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award of reasonable litigation costs incurred in this proceeding under 26 U.S.C. § 7430.
6. Award plaintiffs Melba Abreu and Beatrice Hernandez judgment in the amount of $25,359, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award of reasonable litigation costs incurred in this proceeding under 26 U.S.C. § 7430.
7. Award plaintiffs Marlin Nabors and Jonathan Knight judgment in the amount of $2,894, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award of reasonable litigation costs incurred in this proceeding under 26 U.S.C. § 7430.
8. Award Mary Bowe-Shulman and Dorene Bowe-Shulman judgment in the amount of $3,332, plus interest and costs as allowed by law, and such other relief as this Court may deem just, including the award of reasonable litigation costs incurred in this proceeding under 26 U.S.C. § 7430.
9. Award attorney’s fees and costs to plaintiffs pursuant to 28 U.S.C. § 2412 or any other applicable statutory provision.
10. Grant such other relief as is just and appropriate.
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NANCY MARLIN

GILL & MARCELLE LETOURNEAU MARTIN KOSKI & JAMES FITZGERALD DEAN HARA MARY RITCHIE & KATHLEEN BUSH MELBA ABREU & BEATRICE HERNANDEZ
NABORS & JONATHAN KNIGHT MARY BOWE-SHULMAN & DORENE BOWE-SHULMAN JO ANN WHITEHEAD & BETTE JO GREEN RANDELL LEWIS-KENDELL, AND HERBERT BURTIS

By their attorneys,

GAY

& LESBIAN ADVOCATES & DEFENDERS

Gary gbuseck@glad.org Mary mbonauto@glad.org Ni neshghi@glad.org Janson
Sa sbickett@glad.org 30 Boston, (617)

/s/ Gary D. Buseck D. Buseck, BBO # 067540
L. Bonauto, BBO # 549967
ma R. Eshghi, BBO # 633716
Wu, BBO # 600949 jwu@glad.org
muel P. Bickett, BBO # 676190
Winter Street, Suite 800 MA 02108
426-1350

FOLEY

HOAG LLP

/s/ Claire claporte@foleyhoag.com Vickie vhenry@foleyhoag.com Matthew mmiller@foleyhoag.co Am asenier@floeyhoag.com Seaport 155 Boston,

Claire Laporte Laporte, BBO # 554979
L. Henry, BBO # 632367
Miller, BBO # 655544 m
y Senier, BBO # 672912
World Trade Center West Seaport Boulevard
MA 02210-2600

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(617) Paul

832-1000
JENNER & BLOCK
/s/ Paul M. Smith M. Smith, (pro hac vice)
psmith@jenner.com 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6060

MARLIN
SULLIVAN /s/ David Richard
Boston, (617) DATED: May 25, 2010

AS TO PLAINTIFFS MARY RITCHIE & KATHLEEN BUSH, MELBA ABREU & BEATRICE HERNANDEZ,
NABORS & JONATHAN KNIGHT MARY BOWE-SHULMAN & DORENE BOWE-SHULMAN
& WORCESTER LLP
David J. Nagle J. Nagle, BBO # 638385
dnagle@sandw.com L. Jones, BBO # 631273
rjones@sandw.com One Post Office Square
MA 02109 338-2800

Certificate of Service
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on May 25, 2010.

/s/ Gary D. Buseck Gary D. Buseck

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 Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 1 of 39

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NANCY GILL & MARCELLE LETOURNEAU, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

*

OFFICE OF PERSONNEL MANAGEMENT, *

et al.,

*

*

Defendants.

*

*

Civil Action No. 09-10309-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically, Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual

11 U.S.C. § 7.
2Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”

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couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED
and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to
Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he
lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA, which defines the terms
“marriage” and “spouse,” for purposes of federal law, to include only the union of one man and
one woman. In particular, 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.6
In large part, the enactment of DOMA can be understood as a direct legislative response
3Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996) 61 U.S.C. § 7.
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to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.”10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.”11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “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.12
7852 P.2d 44 (Haw. 1993). 8See id. at 59-67. 9Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside. 10Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”]. 11Id. at 10. 12Id. at 2.
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In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, 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.”14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.”16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’”17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.”18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’
13Section 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.”
14Id. at 25. 15Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16Id. at 3. 17Id. at 12. 18Id. 19Id. at 13, 18.
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“moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports
with traditional (especially Judeo-Christian) morality.”20 In one unambiguous expression of these
objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated
that “[m]ost people do not approve of homosexual conduct . . . and they express their
disapprobation through the law.”21
In the floor debate, members of Congress repeatedly voiced their disapproval of
homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion” and “an
attack upon God’s principles.”22 They argued that marriage by gays and lesbians would “demean”
and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American
family.”24
Although DOMA drastically amended the eligibility criteria for a vast number of different
federal benefits, rights, and privileges that depend upon marital status, the relevant committees did
20Id. at 16 (footnote omitted). 21142 CONG. REC. H7480 (daily ed. July 12, 1996). 22142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith). 23Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle–these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle... Homosexuals and lesbians boast that they are close to realizing their goal–legitimizing their behavior.... At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”). 24Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).
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not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined, prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
25House Report at 10-11. 26Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16). 27U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
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1. Health Benefits Based on Federal Employment Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program. Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses. Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers must meet in order to offer coverage under
28“Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B). 295 U.S.C. § 8905.
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the program.30 The Office of Personnel Management (“OPM”) administers the FEHB and is empowered
to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,”32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.”33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age....”37 An employee enrolled in the FEHB for “self only” coverage may change to “self and family” coverage by submitting documentation to the
30Id. §§ 8901-8914. 31Id. §§ 8902, 8903, 8906. 32Id. § 8913. 33Id. 34Id. § 8906. 35Id. §§ 8905, 8906. 365 C.F.R. § 890.302(a)(1). 37Id. § 8901(5).
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employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.”38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee...or of a retired employee....”39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.”40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and
38See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39See 5 U.S.C. § 8901(3)(B). 405 C.F.R. § 890.303(c). 415 U.S.C. §§ 8951, 8952, 8981, 8982. 42Id. §§ 8951, 8954, 8981, 8984.
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sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.”47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.”48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
C. Flexible Spending Arrangement Program50 A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in
43Id. §§ 8952(a), 8953, 8982(a), 8983. 44Id. §§ 8962(a), 8992(a). 45Id. §§ 8958(a), 8988(a). 46Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47Id. § 894.201(c). 48Id. 894.509(a), (b). 49See 5 U.S.C. §§ 8951(2), 8991(2). 50Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program”. Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
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an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent] provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.”55 A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert
5126 U.S.C. § 125. 52See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 5442 U.S.C. §§ 901, 902. 55Id. § 405(a); see id. § 902(a)(5).
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Burtis seeks Widower’s Insurance Benefits. A. Retirement Benefits
The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].”57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving
56Id. §§ 402, 413(a), 414, 415. 57Id. § 402(b), (c). 58The Social Security Act also provides for a Widow's Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower's Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male. 59Id. §§ 402(I), 413(a), 414(a), (b).
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the individual’s lifetime earnings.60 ii. Widower’s Insurance Benefit
The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or self-employment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
3. Filing Status Under the Internal Revenue Code Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.”63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return
60Id. §§ 402(I), 415(a). 61Id. §§ 402(f), 413(a), 414(a), (b). 62Id. § 402(f)(1); see id. § 402(f)(3). 6326 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
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within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68 B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
64Id. § 6013(b)(1), (2). 65Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 67Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complainedof conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”69 Where the plaintiff lacks standing to pursue his claim, the court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of
69Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
70FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 715 U.S.C. § 8905(b). 725 U.S.C. § 8347(b). 73See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985).
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the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of
74The appeal, however, has been stayed pending the outcome of this action. 16

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DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annuity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a
75See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
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ceiling, to coverage eligibility. Plaintiffs assert, therefore, that OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.”77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.”78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.”79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.”80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot
765 C.F.R. § 890.302(a)(1) (emphasis added). 77One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 785 U.S.C. § 8901(5) (emphasis added). 79United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 801 U.S.C. § 7.
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plausibly interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates
constitutional principles of equal protection.
D. Equal Protection of the Laws “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’”83 It is with this
fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’”84 And it is because of this “commitment to the law’s neutrality where the rights of persons are at stake”85 that legislative
provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional
81Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).
85Romer, 517 U.S. at 623. 19

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scrutiny.86 To say that all citizens are entitled to equal protection of the laws is “essentially a direction
[to the government] that all persons similarly situated should be treated alike.”87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest.90
Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
86Id. 87City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89Id. 90Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.
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• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship”91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity...[and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
91Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted). 92Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted). 93Id. (internal citations omitted). 94Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted).
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Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.”95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.”96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].”97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”98
Importantly, the objective served by the law must be not only a proper arena for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.”100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”101 As such, a law
95Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96Romer, 517 U.S. at 633. 97Id. 98Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). 99Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441). 100Heller v. Doe, 509 U.S. 312, 321 (1993). 101City of Cleburne, 473 U.S. at 447.
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must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.”102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”104 This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare
102Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103House Report at 12-18. 104City of Cleburne, 473 U.S. at 446. 105See Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10.
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communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as
those raised by heterosexual parents.106 But even if Congress believed at the time of DOMA’s
passage that children had the best chance at success if raised jointly by their biological mothers
and fathers, a desire to encourage heterosexual couples to procreate and rear their own children
more responsibly would not provide a rational basis for denying federal recognition to same-sex
marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it
“prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow
from the assurance of a stable family structure,”107 when afforded equal recognition under federal
law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a
rational basis upon which to exclude same-sex marriages from federal recognition because, as
Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now,
nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile
106Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy.aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America,Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/culture/glbtqposition.htm).
107Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting).
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and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.”112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at
109Id. 110Romer, 517 U.S. at 632-33. 111Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112Id.
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the very least mean”113 that the Constitution will not abide such “a bare congressional desire to
harm a politically unpopular group.”114
Neither does the Constitution allow Congress to sustain DOMA by reference to the
objective of defending traditional notions of morality. As the Supreme Court made abundantly
clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State
has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a
law....”115
And finally, Congress attempted to justify DOMA by asserting its interest in the
preservation of scarce government resources. While this court recognizes that conserving the
public fisc can be a legitimate government interest,116 “a concern for the preservation of resources
standing alone can hardly justify the classification used in allocating those resources.”117 This
court can discern no principled reason to cut government expenditures at the particular expense of
113United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone). 115Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)). 116This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of same-sex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages. 117Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).
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Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation. In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits. In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118City of Cleburne, 473 U.S. at 448. 27

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For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be
119See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
120See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 121See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
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determined by state, rather than federal law. This is especially true where a statute deals with a
familiar relationship [because] there is no federal law of domestic relations.”122
This conclusion is further bolstered by an examination of the federal government’s
historical treatment of state marital status determinations.123 Marital eligibility for heterosexual
couples has varied from state to state throughout the course of history. Indeed, pursuant to the
sovereign power over family law granted to the states by virtue of the federalist system, as well as
the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to
which States lay claim by right of history and expertise,”124 individual states have changed their
marital eligibility requirements in myriad ways over time.125 And yet the federal government has
fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid
for federal purposes any heterosexual marriage which has been declared valid pursuant to state
law.126
122DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted). 123This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.). 124United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring). 125See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982). 126See, e.g., Dunn v.Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3)
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By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other
(Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1(j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any state-sanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967). 128Def.’s Reply Mem., 14. 129See NANCY COTT, PUBLIC VOWS 163 (2000).
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similarly politically-charged, protracted, and fluid debates at the state level as to who should be
permitted to marry.130
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding
history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a
congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the
new statute and pre-existing federal interests.”131 And the absence of precedent for the legislative
classification at issue here is equally instructive, for “‘discriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to the
[C]onstitution[]....’”132
The government is certainly correct in its assertion that the scope of a federal program is
generally determined with reference to federal law. But the historically entrenched practice of
incorporating state law determinations of marital status where they are relevant to federal law
130Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 614-15 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view that, in the United States, for the most part, family law is state law.... Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 132Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
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reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo might help to achieve. Staying the course is not an end in and of
133See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010).
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itself, but rather a means to an end. Even assuming for the sake of argument that DOMA
succeeded in preserving the federal status quo, which this court has concluded that it did not, such
assumption does nothing more than describe what DOMA does. It does not provide a
justification for doing it. This court does not doubt that Congress occasionally encounters social
problems best dealt with by preserving the status quo or adjusting national policy incrementally.134
But to assume that such a congressional response is appropriate requires a predicate assumption
that there indeed exists a “problem” with which Congress must grapple.135
The only “problem” that the government suggests DOMA might address is that of state-
to-state inconsistencies in the distribution of federal marriage-based benefits. But the
classification that DOMA effects does not bear any rational relationship to this asserted interest in
134The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
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consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects
136RSA 457:4-5. 137City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
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from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex marriage”139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws–that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the
138See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications...made no sense in light of how the [government] treated other groups similarly situated”).
139Def.’s Mem. Opp. Summ. Judg., 16. 35

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 36 of 39
suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA
140See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
1428 U.S.C. § 1430. 1438 U.S.C.§ 1186b(2)(A). 144See 5 U.S.C. § 6382.
36

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 37 of 39
dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
It strains credulity to suggest that Congress might have created such a sweeping statusbased enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].”146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,”147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context
145See Heller, 509 U.S. at 319-20 (internal citations omitted). 146Id. at 321. 147Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).
37

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 38 of 39
from which [this court] could discern a relationship to legitimate [government] interests.”148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff
148Romer, 517 U.S. at 635. 149Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).
38

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 39 of 39 Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge
39

 
 Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

NANCY GILL & MARCELLE LETOURNEAU, )

et al.

)

Plaintiffs,

)

)

v.

)

)

)

OFFICE OF PERSONNEL MANAGEMENT, et al.
Defendants.

) ) )

No. 1:09-cv-1 0309 JLT

~AMENDED JUDGMENT

This action came on for a hearing before the Court on the Defendants' Motion to Dismiss

[#20] and Plaintiffs' Motion for Summary Judgment [#25], and the issues having been duly

heard and a Memorandum having been issued on July 8, 2010,

It is ORDERED AND ADJUDGED:

The Plaintiffs' Motion for Summary Judgment is ALLOWED and:

( 1) The rights of the Plaintiffs are declared as follows:

(a) Section 3 ofthe Defense ofMarriage Act, 1 U.S.C. §7 ("DOMA"), is

unconstitutional as applied to the Plaintiffs by the Defendants in the administration and

application of ( 1) the Federal Employees Health Benefits Program ("FEHB"), (2) the

Federal Employees Dental and Vision Insurance Program ("FEDVIP"), (3) the United

States Postal Service Health Care Flexible Spending Account program ("Postal Service

Health Care FSA"), (4) certain retirement and survivor benefit provisions of the Social

Security Act, as set forth below, and (5) the Internal Revenue Code.

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 2 of 6
(b) The PlaintiffNancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The PlaintiffNancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f) The Plaintiff JoAnn Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse, Bette Jo Green, without regard to Section 3 ofDOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 ofDOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 ofDOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
-2-

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 3 of 6
(a) to permit PlaintiffNancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to PlaintiffNancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management ("OPM") is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 ofDOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from "self only" to "self and family" so as to provide coverage for his spouse, Plaintiff James Fitzgerald;
(b) to refrain from interfering with or from declining to permit enrollment, on the basis ofDOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit PlaintiffNancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
- 3-

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 4 of 6
(b) to review the Plaintiff JoAnn Whitehead's application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, withoUtt regard to Section 3 ofDOMA;
(c) to review the Plaintiff Randell Lewis-Kendell's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of OOMA; and
(d) to review the Plaintiff Herb Burtis's application for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII ofthe Second Amended and Supplemental Complaint, th1! following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054. (b) For the taxable year ending December 31, 2005: $2,703. (c) For the taxable year ending December 31, 2006: $4,390. (d) For the taxable year ending December 31, 2007: $6,371. (e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII ofthe Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 ofthe Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
. 4.

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 5 of 6
(a) For the taxable year ending December 31, 2004: $4,687. (b) For the taxable year ending December 31, 2005: $3,785. (c) For the taxable year ending December 31, 2006: $5,546. (d) For the taxable year ending December 31, 2007: $5,697. (e) For the taxable year ending December 31, 2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America: (a) For the taxable year ending December 31, 2006: $1,286. (b) For the taxable year ending December 31, 2007: $1,234. (c) For the taxable year ending December 31, 2008: $3 74. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Dc~fendants' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely on the Plaintiff Dean Hara's claim for enrollment in the FEHB Program as a matter of standing.
-5-

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 6 of 6

JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties' concurrence in the form ofthis Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12, 2010 [#71].

ENTERED:

L. Tauro
States District Judge

-6-

 
 U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave., NW, Rm 7261 Washington, DC 20530
Tel: (202) 353-8253 Fax: (202) 514-8151
February 24, 2010
VIA ELECTRONIC FILING
Margaret Carter Clerk of the United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210
Re: Massachusetts v. HHS et al., No. 10-2204 Hara et al. v. OPM et al., Nos. 10-2207, and 10-2214
Dear Ms. Carter:
Please see the attached letters relating to the above-captioned cases.
Respectfully submitted,
/s/ Benjamin S. Kingsley Benjamin S. Kingsley Attorney, Appellate Staff Civil Division, Room 7261 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001
Counsel for Respondents

CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2011, I caused a copy of the foregoing to be filed
electronically with the Court using the Court’s CM/ECF system, and also caused four paper
copies to be delivered to the Court by hand delivery within two business days. I also hereby
certify that the participants in the case will be served via the CM/ECF system.
/s/ Benjamin S. Kingsley Benjamin S. Kingsley Benjamin.S.Kingsley@usdoj.gov Attorney, Appellate Staff Civil Division, Room 7261 United States Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530-0001

U. S. Department of Justice Civil Division

Assi.~umt Attorney General

Washington. D.C. 20530

VIAECF

Februmy 24, 2011

Margaret Carter Clerk of the United States Court of Appeals for the First Circuit John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210

Re: Litigation Involving Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7

Dear Ms. Carter:

The President and Attorney General have recently made a determination regarding the constitutionality of Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7. Pursuant to th<:: attached letter, the Attorney General and President have concluded: that heightened scrutiny is the appropriate standard of review for classifications based on sexual orientation; that, consistent with that standard, Section 3 ofDOMA may not be constitutionally applied to samesex couples whose maJTiages are legally recognized under state law; and that the Depmiment will cease its defense of Section 3 in such cases.

The following cases involving Section 3 of DOMA are pending in this jurisdiction:

Massachusetts v. HHS et al. (1st Cir. No. 10-2204) Haraetal. v. OPMetal. (lstCir. Nos. 10-2207 and 10-2214)

Further, as the Attorney General explained in the attached letter, we hereby "notify the courts of our interest in providing Congress a full and fair oppotiunity to participate in the litigation in those cases." In addition, we "will remain parties to the case and continue to represent the interests of the United States throughout the litigation."

Respectfully submitted,

Assistant Attorney General

~ffice of t4t 1\ttorntt! ~eneral
m. Bas~ingtnn. Ql. 205:30
February 23, 2011
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 ofthe Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, 1 as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense ofthis provision. In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 ofDOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form ofheightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications
1 DOMA Section 3 states: "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."

based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.2
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587,602-03 (1987); City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have "demean[ed] the[] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence v. Texas, 539 U.S. 558, 578 (2003).3
2 See, e.g., Dragovich v. U.S. Department ofthe Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 2011 ); Gill v. Office ofPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. County ofOrange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v. Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925, 931 (9th Cir. E.D.R. Plan Administrative Ruling 2009). 3 While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200,216 (1995)(classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515,531 (1996) (observing that '"our Nation has had a long and unfortunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed or subject to moral approbation. Cf Cleburne, 473 U.S. at 441 (heightened scrutiny may be warranted for characteristics "beyond the individual's control" and that "very likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts ofAmerica v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots."' (quoting Bowers, 478 U.S. at 192)).
2

Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don't Ask, Don't Tell Repeal Act of2010, Pub. L. No. 111321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 51 7 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And. while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don't Ask, Don't Tell Repeal Act of2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).4 Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings. 5 And none
4 See Equality Foundation v. City ofCincinnati, 54 F.3d 26I, 266-67 & n. 2. (6th Cir. I995); Steffan v. Perry, 4I F.3d 677, 685 (D.C. Cir. I994); Woodward v. United States, 871 F.2d I068, I076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 88I F.2d 454, 464 (7th Cir. 1989); Padula v. Webster, 822 F.2d 97, I03 (D.C. Cir. I987).
5See, e.g, Lofton v. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (lith Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the
3

engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.6 But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." !d. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.7 See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or
argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No. I04-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have 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. 6 See Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation ofGreater Cincinnati, Inc. v. City ofCincinnati, 128 F.3d 289,292-94 (6th Cir. 1997).
7 See, e.g., H.R. Rep. at 15-16 (judgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ... feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is immoral"); id. at 15 ("Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are "in accord with nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowers that an "anti-sodomy law served the rational purpose of expressing the presumed belief ... that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romer that "[t]his Court has no business ... pronouncing that 'animosity' toward homosexuality is evil").
4

fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married samesex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department's lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch's view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of
5

DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position ofthe United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys will also notifY the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
6

 
 Case 3:10-cv-01750-VLB Document 112-2 Filed 06/29/12 Page 2 of 49

No. ____

In The
Supreme Court of the United States
________________
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Petitioner, v.
NANCY GILL, ET AL., Respondents.
________________
On Petition for a Writ of Certiorari to the United States Court of Appeals for__t_h_e__F_i_r_s_t_C__i_r_c_uit

PETITION FOR A WRIT OF CERTIORARI ________________

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel CONOR B. DUGAN

CHRISTINE DAVENPORT NICHOLAS J. NELSON

Senior Assistant Counsel BANCROFT PLLC

TODD B. TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

Assistant Counsels

Washington, D.C. 20036

OFFICE OF GENERAL COUNSEL (202) 234-0090

U.S. HOUSE OF

pclement@bancroftpllc.com

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Petitioner

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QUESTIONS PRESENTED Section 3 of the Defense of Marriage Act provides that for purposes of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7. The court of appeals held that Section 3 violates equal protection. It recognized that Section 3 is not subject to either “heightened” or “intermediate” scrutiny and that Section 3 passes “conventional” rational basis review. But it struck down Section 3 nonetheless based on a new form of review (which it viewed as outcome determinative) said to entail “intensified scrutiny,” “closer than usual review,” and “diminish[ed]” deference to Congress. The court based its new standard of review on a fusion of “equal protection and federalism concerns.” The questions presented are: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.

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PARTIES TO THE PROCEEDING The Bipartisan Legal Advisory Group of the U.S. House of Representatives was the IntervenorAppellant in the court below. The U.S. Department of Health and Human Services, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, the U.S. Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as Secretary of the U.S. Department of Veterans Affairs, and the United States of America were Appellants in the court below. The Office of Personnel Management, the U.S. Postal Service, Patrick R. Donahoe, in his official capacity as Postmaster General of the United States, Michael J. Astrue, in his official capacity as Commissioner of the Social Security Administration, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, and the United States of America were Appellants/CrossAppellees in the court below. Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Dorene Bowe-Shulman, Mary Bowe-Shulman, and the Commonwealth of Massachusetts were Appellees in the court below. Dean Hara was an Appellee/Cross-Appellant in the court below.

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TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES ..................................... vi PETITION FOR A WRIT OF CERTIORARI ............ 1 OPINIONS BELOW................................................... 1 JURISDICTION ......................................................... 2 CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................. 2 STATEMENT OF THE CASE ................................... 2
A. The Defense of Marriage Act ....................... 2 B. The District Court’s Decisions in
Gill and Massachusetts .............................. 11 C. The Justice Department’s About-
Face ............................................................ 12 D. The First Circuit’s Decision ....................... 13 REASONS FOR GRANTING THE WRIT............... 16 I. The Constitutionality of Section 3 of DOMA Is an Issue of Great National Importance and Separation-of-Powers Considerations Strongly Counsel in Favor of Prompt Review. .................................. 17 II. The Decision Below Conflicts With This Court’s Decision in Baker v. Nelson and With the Decisions of Other Courts of Appeals. ............................................................. 22 III. The Court of Appeals Invented a New Standard of Equal Protection Review. ............. 28 CONCLUSION ......................................................... 35

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APPENDICES Appendix A Opinion of the United States Court of Appeals for the First Circuit, Nos. 10-2204, 10-2207, & 10-2214 (May 31, 2012) ............................................ 1a Appendix B Judgment of the United States Court of Appeals for the First Circuit, Nos. 10-2204, 10-2207, & 10-2214, (May 31, 2012) ........................................... 30a Appendix C Opinion of the United States District Court for the District of Massachusetts, Gill v. Office of Personnel Management, No. 09-10309 (July 8, 2010) ............................................. 32a Appendix D Opinion of the United States District Court for the District of Massachusetts, Commonwealth of Massachusetts v. United States Department of Health and Human Services, No. 09-11156 (July 8, 2010) ............................................. 78a

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Appendix E Letter from Eric H. Holder, Jr., Attorney General, to the Honorable John A. Boehner, Speaker of the U.S. House of Representatives (Feb. 23, 2011) .......................................... 119a
Appendix F Letter from Tony West, Assistant Attorney General, to Margaret Carter, Clerk of the United States Court of Appeals for the First Circuit (Feb. 24, 2011) .......................................... 130a

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TABLE OF AUTHORITIES Page(s)
Cases Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) .......................... 4 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ............ 25, 26, 28 Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) ............................................... 32 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................... 4 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ......................... 22, 23 Baker v. Nelson, 409 U.S. 810 (1972) ................................... 13, 22, 23 In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011)................... 21 Braxton v. United States, 500 U.S. 344 (1991) ............................................... 24 Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................... 27, 28 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................... 14, 30, 31 Clark v. Jeter, 486 U.S. 456 (1988) ............................................... 30

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Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009) ...................... 13, 27
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ................................. 26
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................ 4
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ............................................... 18
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) ................... 20
Gonzales v. Raich, 545 U.S. 1 (2005) ................................................... 18
Heller v. Doe, 509 U.S. 312 (1993) ............................................... 30
Hicks v. Miranda, 422 U.S. 332 (1975) ............................................... 23
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................................. 27
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................................. 27
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ........ 10, 20
Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005) ........................ 27
Mandel v. Bradley, 432 U.S. 173 (1977) ............................................... 24

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McConnell v. Nooner, 547 F.2d 54 (8th Cir. 1976) ................................... 26
Murphy v. Ramsey, 114 U.S. 15 (1885) ................................................... 7
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ................................... 27
New York v. United States, 505 U.S. 144 (1992) ............................................... 32
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ......................................... 18, 33
Padula v. Webster, 822 F.3d 97 (D.C. Cir. 1987) ................................. 27
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ............................. 27
Printz v. United States, 521 U.S. 898 (1997) ............................................... 32
Regan v. Time, Inc., 468 U.S. 641 (1984) ............................................... 19
Reno v. Condon, 528 U.S. 141 (2000) ............................................... 18
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ............................................... 34
Romer v. Evans, 517 U.S. 620 (1996) ......................................... 14, 30
Rostker v. Goldberg, 453 U.S. 57 (1981) ................................................... 9

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Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006)........... 10, 20
South Dakota v. Dole, 483 U.S. 203 (1987) ............................................... 32
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en banc) ................. 27
Tenet v. Doe, 544 U.S. 1 (2005) ................................................... 33
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), cert. denied, 519 U.S. 948 (1996) .......................... 27
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ................................... 14, 30, 31
United States v. Bajakajian, 524 U.S. 321 (1998) ............................................... 18
United States v. Edge Broad. Co., 509 U.S. 418 (1993) ............................................... 18
United States v. Five Gambling Devices, 346 U.S. 441 (1953) ................................................. 9
United States v. Lopez, 514 U.S. 549 (1995) ............................................... 33
United States v. Morrison, 529 U.S. 598 (2000) ......................................... 18, 33
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ........... 10, 20
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) .................... 20
Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ................................. 27

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Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ........................ 27
Constitutional Provisions U.S. Const. art. II, § 3 ................................................ 9 U.S. Const. Amend. V ................................................ 2 Neb. Const. art. I, § 29 ............................................. 28 Statutes 1 U.S.C. § 7 ................................................................. 2 26 U.S.C. § 6013(a)..................................................... 3 28 U.S.C. § 1254(1)..................................................... 2 28 U.S.C. § 1257(2)................................................... 23 28 U.S.C. § 1291 ......................................................... 2 28 U.S.C. § 1738C ...................................................... 3 Revenue Act of 1921, § 223(b),
42 Stat. 227.............................................................. 3 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101 ................... 4 Rules & Regulation Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993)...................... 1 Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...................... 1 U.S. Dep’t of Labor, Final Rule, Family Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2190-91 (Jan. 6, 1995) ................................... 4

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Other Authorities 142 Cong. Rec. 16796 (1996) (Rep. McInnis) ............ 7 142 Cong. Rec. 16969 (1996) (Rep. Canady) ............. 6 142 Cong. Rec. 16970 (1996)
(Rep. Hutchinson).................................................... 7 142 Cong. Rec. 17072 (1996)
(Rep. Sensenbrenner) .............................................. 6 142 Cong. Rec. 17081 (1996) (Rep. Weldon).............. 8 142 Cong. Rec. 17093 (1996)...................................... 2 142 Cong. Rec. 22262 (1996)
(Sen. Lieberman) ..................................................... 8 142 Cong. Rec. 22442 (1996) (Sen. Gramm).............. 7 142 Cong. Rec. 22446 (1996) (Sen. Byrd) .................. 8 142 Cong. Rec. 22451 (1996) (Sen. Coats) ................. 8 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ........... 8 142 Cong. Rec. 22454 (1996) (Sen. Burns) ................ 7 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ............ 6 142 Cong. Rec. 22467 (1996)...................................... 2 Corrected Br. for U.S. Dep’t of HHS, et al.,
Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 20, 2011) .......................................... 12 Council on Families in America, Marriage in America: A Report to the Nation (1995).................. 7 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) .................... 6, 7, 8, 9

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Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................................................. 9
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ............passim
Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (S.Ct. Feb. 10, 1972) ......................... 23
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996) ................................... 9
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996) ....................................... 9
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996)........................................ 9
U.S. Gen. Accounting Office, GAO-04-353R, Defense of Marriage Act (2004) ............................. 19

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PETITION FOR A WRIT OF CERTIORARI The Bipartisan Legal Advisory Group of the United States House of Representatives (“the House”) respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case.1
OPINIONS BELOW The opinion of the First Circuit has not yet been published in the Federal Reporter, but is available at 2012 WL 1948017 and reproduced in the appendix hereto (“App.”) at App. 1a. The opinions of the district court are reported at 699 F. Supp. 2d 374 and 698 F. Supp. 2d 234, and reproduced at App. 32a
1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

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and App. 78a. JURISDICTION
The First Circuit had jurisdiction pursuant to 28 U.S.C. § 1291. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment provides: “No person shall * * * be deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V.
Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“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.
STATEMENT OF THE CASE A. The Defense of Marriage Act The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” App. 3a. The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate). In enacting DOMA, Congress acted to ensure that every sovereign—including each state

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and the federal government—could make its own determination about same-sex marriage.
To that end, Section 2 of the Defense of Marriage Act, which plaintiffs do not challenge here, provides that no state is required to give effect to another state’s recognition of same-sex marriages. See 28 U.S.C. § 1738C; App. 28a (addendum to opinion below).
Section 3 defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. These definitions apply for purposes of federal law only.
DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage. See App. 4a, 14a (DOMA does not “prevent same-sex marriages where permitted under state law”). Section 3 of DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition which “governs only federal programs and funding.” App. 17a.
Congress, of course, did not invent the meanings of “marriage” and “spouse” in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant—and what courts and the executive branch have always understood it to mean—in using those words: a traditional male-female couple. See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting “a husband and wife living together” to file a joint tax return; cf. 26 U.S.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); Veterans and Survivors Pension

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Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101 (“For the purposes of this title—* * * (31) The term ‘spouse’ means a person of the opposite sex who is a wife or husband.”); U.S. Dep’t of Labor, Final Rule, Family Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes.”), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”).
DOMA was enacted in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which held that the denial of marriage licenses to same-sex couples was subject to strict scrutiny under the state constitution. As the Hawaii courts “appear[ed] to be on the verge of requiring that State to issue marriage licenses to same-sex couples,” H.R. Rep. No. 104-664, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”), Congress was concerned that this could interfere with the ability of other sovereigns—the other 49 states and the federal government—to define marriage in their own way. Section 2 of DOMA therefore employed Congress’ power under the Full Faith and Credit Clause to clarify that

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states need not recognize foreign same-sex marriages. And with Section 3, Congress reaffirmed that, no matter how any state might choose to redefine marriage under state law—whether through legislative change or judicial interpretation of state law—the federal definition of marriage need not follow suit. Instead, Congress provided for a uniform definition that would ensure that the definition for federal law purposes would remain what Congress had always intended: the lawful union of one man and one woman.
In DOMA’s extensive legislative history,2 Congress recognized that past Congresses uniformly used the words “marriage” and “spouse” to refer solely to opposite-sex couples. See House Rep. 10 (“[I]t can be stated with certainty that none of the federal statutes or regulations that use the words ‘marriage’ or ‘spouse’ were thought by even a single Member of Congress to refer to same-sex couples.”); id. at 30 (“Section 3 merely restates the current
2 The court below stated, incorrectly, that “only one day of hearings was held on DOMA.” App. 19a. In fact, there were hearings in both Houses as well as extensive floor debates. A subcommittee of the House Committee on the Judiciary held a hearing on May 15, 1996. See Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (“House Hrg.”). It held a mark-up session on May 30. The full Committee held mark-up sessions on June 11 and June 12. The Committee issued its report, H.R. Rep. No. 104-664, on July 9. Floor debate on DOMA and its accompanying rule took place in the House on July 11 and 12. In the Senate, the Senate Judiciary Committee held a hearing on July 11. See Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) (“Senate Hrg.”). Floor debate in the Senate occurred on September 10.

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understanding of what those terms mean for purposes of federal law.”); 142 Cong. Rec. 16969 (1996) (Rep. Canady) (“Section 3 changes nothing; it simply reaffirms existing law.”); id. at 17072 (Rep. Sensenbrenner). DOMA thus was intended to ensure that the meaning of federal statutes already on the books, and the legislative judgments of earlier Congresses, would not be altered by changes in state law. See House Hrg. 32 (Rep. Sensenbrenner) (“When all of these benefits were passed by Congress—and some of them decades ago—it was assumed that the benefits would be to the survivors or to the spouses of traditional heterosexual marriages.”).
Congress stressed that disagreements among the states regarding which couples can marry should not be permitted to create serious geographical disparities in the applicability of federal marital duties and benefits. As Senator Ashcroft stated, having a federal definition of marriage “is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently * * * [and] people in different States would have different eligibility to receive Federal benefits, which would be inappropriate.” 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, “should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State.” Id.
Congress also enacted DOMA to conserve the public fisc. “Government currently provides an array of material and other benefits to married

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couples,” and those benefits “impose certain fiscal obligations on the federal government.” House Rep. 18. Congress believed that DOMA would “preserve scarce government resources, surely a legitimate government purpose.” Id.
Congress also repeatedly emphasized “‘[t]he enormous importance of [traditional] marriage for civilized society.’” House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Court’s decision in Murphy v. Ramsey, 114 U.S. 15, 45 (1885), in which the Court referred to “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization.” House Rep. 12. See also 142 Cong. Rec. 16970 (1996) (Rep. Hutchinson) (marriage “has been the foundation of every human society”); id. at 22442 (Sen. Gramm) (“There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society—it is the oldest institution that exists.”); id. at 22454 (Sen. Burns) (“[M]arriage between one man and one woman is still the single most important social institution.”). And Congress recognized that the institution of marriage has traditionally been defined in American law as the union of one man and one woman. See House Rep. 3 (“[T]he uniform and unbroken rule has been that only opposite-sex couples can marry.”); House Hrg. 1 (statement of Rep. Canady) (“[I]n the history of our country, marriage has never meant anything else.”); 142 Cong. Rec. 16796 (1996) (Rep. McInnis) (“If we

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look at any definition, whether it is Black’s Law Dictionary, whether it is Webster’s Dictionary, a marriage is defined as [a] union between a man and a woman * * * and this Congress should respect that.”); id. at 22451 (Sen. Coats) (DOMA “merely restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world”); id. at 22452 (Sen. Mikulski) (DOMA “is about reaffirming the basic American tenet of marriage”).
Congress also explained that the reason “society recognizes the institution of marriage and grants married persons preferred legal status” is that it “has a deep and abiding interest in encouraging responsible procreation and child-rearing.” House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without external assistance, and sought to encourage children to be raised by both their biological parents. See 142 Cong. Rec. 22446 (1996) (Sen. Byrd); id. at 22262 (Sen. Lieberman) (“I intend to support the Defense of Marriage Act because I think [it] affirms another basic American mainstream value, * * * marriage as an institution between a man and a woman, the best institution to raise children in our society.”); House Hrg. 1 (Rep. Canady) (“[Marriage] is inherently and necessarily reserved for unions between one man and one woman. This is because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children.”); 142 Cong. Rec. 17081 (1996) (Rep. Weldon) (“[M]arriage of a man and woman is the foundation of the family.

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The marriage relationship provides children with the best environment in which to grow and learn.”).
Before enacting DOMA, Congress received and considered advice on its constitutionality and determined that DOMA is constitutional. See, e.g., House Rep. 33 (DOMA “plainly constitutional”); House Hrg. 87-117 (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell). Congress specifically sought constitutional advice from the executive branch, and the Justice Department under the Clinton Administration advised Congress three times that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2.3
Discharging the Executive’s constitutional duty to “take care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, the Justice Department during the Bush Administration successfully defended
3 This Court “does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is [constitutional].” United States v. Five Gambling Devices, 346 U.S. 441, 449 (1953) (plurality). “The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act’s constitutionality.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981).

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DOMA against several constitutional challenges, prevailing in every case to reach final judgment. See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).
The Department of Justice continued to defend DOMA during the first two years of the current Administration. In February 2011, however, the Attorney General abruptly notified Congress that the Department had decided “to forgo the defense” of DOMA. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (App 128a). Attorney General Holder stated that he and President Obama were of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.” App. 129a.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” App. 127a-128a. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every circuit to consider the issue (i.e., eleven circuits) had held that sexual orientation classifications are subject only to rational

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basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” App. 123a-125a, 129a.
B. The District Court’s Decisions in Gill and Massachusetts
Gill v. Office of Personnel Management was filed in March 2009 in the District of Massachusetts by six same-sex couples married in Massachusetts and three surviving spouses of such marriages. The Gill plaintiffs sought to enjoin the executive-branch defendants from enforcing DOMA and to force the executive-branch defendants to extend to the Gill plaintiffs federal benefits available to opposite-sex married couples. In July 2009, Massachusetts filed a companion case styled Massachusetts v. U.S. Department of Health and Human Services asserting that DOMA also violated the Tenth Amendment and the Spending Clause. App. 4a-5a.
The Justice Department defended DOMA in the district court in the Gill and Massachusetts cases, App. 5a, although it declined to defend many of Congress’ stated justifications for the statute. See App. 57a-58a (“[T]he government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly.”).
In Gill, the district court held that Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause. App. 33a. In Massachusetts, the district court held that Section 3 violates the Tenth Amendment and the Spending Clause “by intruding on areas of exclusive state authority” and by “forcing” the Commonwealth

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to “discriminat[e] against its own citizens in order to receive and retain federal funds” for Medicaid and for veterans’ cemeteries. App. 79a.
The executive-branch defendants appealed the district court’s rulings in Gill and Massachusetts. The district court stayed its judgments pending appeal. C.A. App. 676, 1425.
C. The Justice Department’s About-Face On appeal, the Justice Department “filed a brief in [the First Circuit] defending DOMA against all constitutional claims.” App. 6a. That brief argued that “DOMA is subject to rational basis review under the equal protection component of the Due Process Clause. Under such review the statute is fully supported by several interrelated rational bases.” Corrected Br. for U.S. Dep’t of HHS, et al. 25, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 20, 2011). Only a few weeks later, in February 2011, the Department performed its “about face” on DOMA, App. 6a, and informed the First Circuit that it would “cease its defense” in the Gill and Massachusetts appeals. Letter from Tony West, Asst. Att’y Gen., to Margaret Carter, Clerk of Court (Feb. 24, 2011) (App. 130a). The House then moved to intervene on appeal, and the Department moved to withdraw its opening brief. App. 6a. The First Circuit granted the House’s motion to intervene, but denied the Department’s motion to withdraw its opening brief, while permitting the Department to file a superseding brief. See Order (June 16, 2011). In its new brief, the Department not only failed to defend the constitutionality of an Act of Congress but

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affirmatively attacked it, arguing that “the equal protection claim should be assessed under a ‘heightened scrutiny’ standard and that DOMA failed that standard.” App. 6a. Indeed, the brief affirmatively assailed DOMA’s constitutionality and went so far as to attack the motives of individual legislators and charge them with animus.4
D. The First Circuit’s Decision Affirming the district court, the First Circuit held that Section 3 of DOMA violates equal protection. Although the Gill plaintiffs, the Department of Justice, and Massachusetts all urged the court below to recognize sexual orientation as a suspect or quasisuspect classification and to apply heightened scrutiny to DOMA, the First Circuit declined to do so. It explained that creating “a new suspect classification for same-sex relationships would have far-reaching implications—in particular by implying an overruling of Baker [v. Nelson, 409 U.S. 810 (1972)], which we are neither empowered to do nor willing to predict.” App. 11a. The court below also said that it would not declare such classifications suspect because doing so “could overturn marriage laws in a huge majority of individual states.” App. 11a. The First Circuit also rejected the Justice Department’s request for the application of “the socalled intermediate scrutiny test,” stating that “extending intermediate scrutiny to sexual
4 After the Justice Department switched sides in this case, the Gill plaintiffs, supported by the Department, petitioned the First Circuit for initial en banc hearing. The court denied the petition. See Order (Aug. 23, 2011).

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preference classifications is not a step open to us.” App. 10a. The court noted that in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009), the First Circuit had “declined to create a major new category of ‘suspect classification’ for statutes distinguishing based on sexual preference,” and that Cook “binds the panel.” App. 10a.
Significantly, the First Circuit recognized expressly that DOMA passes the rational basis test, stating that, “[u]nder such a rational basis standard, the Gill plaintiffs cannot prevail.” App. 10a. The court also noted that the Justice Department conceded this point. See App. 10a (“The federal defendants conceded that rational basis review leaves DOMA intact”); App. 9a (“The federal defendants said that DOMA would survive such rational basis scrutiny”).
But the First Circuit did not apply what it called “classic” or “conventional” rational basis review. App. 11a, 14a. Instead, it invented a new standard of equal protection review that it described as involving “intensified scrutiny” and “closer than usual review.” App. 11a, 7a. See also App. 15a (“closer than usual scrutiny”). The court said that, under this newly minted form of judicial review, the “deference ordinarily accorded” to an Act of Congress is “diminish[ed].” App. 15a.
The First Circuit purported to draw support for its new standard of review from three of this Court’s cases, U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996). Contrary to the First Circuit’s

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claim, however, those cases did not involve a departure from “classic rational basis review.” App. 12a. See infra pp. 29-31.
Although it squarely rejected Massachusetts’ Tenth Amendment and Spending Clause challenges to DOMA, App. 15a-17a, the First Circuit nonetheless invoked “federalism concerns” in support of its new standard of equal protection review. Indeed, it presented its new standard of review as a fusion of federalism and equal protection concerns. See App. 7a (“equal protection and federalism concerns * * * combine * * * to require a closer than usual review”); App. 15a (“Supreme Court precedent relating to federalism-based challenges to federal laws reinforce[s] the need for closer than usual scrutiny of DOMA’s justifications and diminish[es] somewhat the deference ordinarily accorded”); App. 19a (“closer examination” of whether DOMA violates equal protection “is uniquely reinforced by federalism concerns”); App. 23a-24a, 25a.
Applying its new form of review, the First Circuit concluded that Section 3 of DOMA “has not been adequately supported by any permissible federal interest.” App. 25a. See also App. 23a (“[T]he rationales offered do not provide adequate support for section 3 of DOMA.”). The First Circuit’s new standard of review was outcome determinative in this case, since the court acknowledged that DOMA satisfies rational basis review. App. 10a.
Although it erred in striking down Section 3 of DOMA, the First Circuit correctly rejected “the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App. 24a. The

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court explained that “[t]he opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton.” App. 24a. See id. (“[T]he elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.”).
The First Circuit sua sponte stayed its mandate on the view that “Supreme Court review of DOMA is highly likely.” App. 27a. See also App. 30a-31a (Judgment) (staying mandate); App. 7a (“only the Supreme Court can finally decide” this case).
REASONS FOR GRANTING THE WRIT As the First Circuit recognized, this case calls out for this Court’s review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible. Under this Court’s cases, a law with a rational basis that does not implicate a suspect class or heightened scrutiny is constitutional. The court of appeals reached this counterintuitive result by applying an entirely novel form of scrutiny that cannot be reconciled with the approach of this Court and that of ten other circuits. Thus, the decision below invalidates an Act of Congress, conflicts with the decisions of this Court and numerous other courts of appeals, and embraces an entirely novel approach to constitutional equal protection analysis. It is hard to imagine a stronger candidate for this Court’s review.

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Yet there is one more compelling reason for granting this petition. Separation of powers considerations strongly counsel in favor of this Court’s review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department—not the House—is institutionally designed. Only this Court can settle this matter definitively. Unless and until this Court decides the question, the executive branch will continue to attack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend. This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process. I. The Constitutionality of Section 3 of DOMA
Is an Issue of Great National Importance and Separation-of-Powers Considerations Strongly Counsel in Favor of Prompt Review. The First Circuit struck down Section 3 of DOMA employing novel reasoning to conclude that it violates equal protection. That holding clearly warrants this Court’s review. Even in the absence of a circuit split, this Court has indicated that a circuit court decision invalidating an Act of Congress on constitutional grounds is a sufficient basis for this Court’s plenary review. See, e.g., Gonzales v. Raich,

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545 U.S. 1, 9 (2005) (certiorari granted because of the “obvious importance of the case”); United States v. Morrison, 529 U.S. 598, 605 (2000) (“Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari.”); Reno v. Condon, 528 U.S. 141, 147-148 (2000); United States v. Bajakajian, 524 U.S. 321, 327 (1998) (“Because the Court of Appeals’ holding * * * invalidated a portion of an Act of Congress, we granted certiorari.”); United States v. Edge Broad. Co., 509 U.S. 418, 425 (1993); FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“Because the Court of Appeals held an Act of Congress unconstitutional, we granted certiorari.”). In this case, the First Circuit declared unconstitutional a high-profile and important federal statute passed by Congress with overwhelming bipartisan support. The fact that it needed to deviate from settled law of this Court and other circuits and invent an entirely novel form of equal protection review to do so, see infra pp. 28-34, only strengthens the case for review.
Review of the First Circuit’s decision is warranted because “[j]udging the constitutionality of an Act of Congress is the gravest and most delicate duty that this Court is called on to perform. The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204-205 (2009) (quotation marks and citations omitted). Furthermore, “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U.S. 641, 652 (1984).

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Because the terms “marriage” and “spouse” are used in numerous federal statutes, including those conferring federal benefits, the First Circuit’s decision will have a sweeping impact. By one account, as of 2004, 1,138 provisions in the United States Code made marital status “a factor in determining or receiving benefits, rights, and privileges.” U.S. Gen. Accounting Office, GAO-04353R, Defense of Marriage Act 1 (2004). See also App. 4a (“DOMA affects a thousand or more generic crossreferences to marriage in myriad federal laws.”).
The issue of DOMA’s constitutionality is important not only because of the unprecedented number of statutes affected, but also because litigation over DOMA’s constitutionality is proliferating. While the First Circuit was the first circuit court to rule on DOMA’s constitutionality, three pending DOMA cases are on appeal in two other circuits. See Golinski v. U.S. Office of Pers. Mgmt., Nos. 12-15388 & 12-15409 (9th Cir.) (oral argument scheduled for week of September 10, 2012); Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir.) (oral argument scheduled for week of September 24, 2012); Dragovich v. U.S. Dep’t of Treasury, No. 1216461 (9th Cir.) (opening brief on appeal due October 4, 2012). A DOMA appeal is also pending in the U.S. Court of Appeals for Veterans Claims. See Cardona v. Shinseki, No. 11-3083 (Vet. App.).
District courts have rendered conflicting decisions on DOMA’s constitutionality. Four district courts have held that Section 3 of DOMA is constitutional. See Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011); Torres-Barragan v. Holder, No. 2:09-cv08564 (C.D. Cal. Apr. 30, 2010); Wilson v. Ake, 354

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F. Supp. 2d 1298 (M.D. Fla. 2005); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005).5
Three district courts (and the district court in this case) have held that DOMA is unconstitutional, based on widely divergent rationales. The court in Windsor v. United States, 833 F. Supp. 2d 394, 402 (S.D.N.Y. 2012), followed the First Circuit’s approach in this case and applied “intensified scrutiny.” In Dragovich v. U.S. Department of the Treasury, No. 10-1564, 2012 WL 1909603, at *10, *14 (N.D. Cal. May 24, 2012), the court applied rational-basis scrutiny but concluded, contrary to the panel below, that DOMA is invalid because it was motivated by “animus.” The court in Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012), took yet another approach and held that heightened scrutiny should apply to sexual orientation classifications and that DOMA is invalid under that standard. All three of those decisions are now on appeal. Additionally, the district court in this case held that DOMA violates the Tenth Amendment and the Spending Clause. See supra pp. 11-12. 6
5 A fifth district court also upheld DOMA’s constitutionality, but that portion of its judgment was vacated on appeal on the ground that the unmarried plaintiffs challenging DOMA in that case lacked standing. See Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 477 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006). 6 Two bankruptcy courts within the Ninth Circuit have reached opposite conclusions on DOMA’s constitutionality. Compare In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (DOMA constitutional) with In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) (DOMA unconstitutional). The Balas opinion added to

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There are currently seven other DOMA cases pending in district courts around the country in six different circuits. See Bishop v. United States, No. 04-848 (N.D. Okla.); Pedersen v. Office of Pers. Mgmt., No. 10-1750 (D. Conn.); Revelis v. Napolitano, No. 11-1991 (N.D. Ill.); Cozen O’Connor, P.C. v. Tobits, No. 11-45 (E.D. Pa.); McLaughlin v. Panetta, No. 11-11905 (D. Mass.); Cooper-Harris v. United States, No. 12-887 (C.D. Cal.); Blesch v. Holder, No. 12-1578 (E.D.N.Y.).
This proliferation of cases is a product of the Department’s incoherent decision to implement-butnot-defend DOMA. That awkward posture not only forces executive branch officials to take actions that executive branch lawyers will not defend, but also forces the House into a litigation role for which it is not institutionally staffed or designed. Because the Justice Department has abdicated its responsibility to defend DOMA, an Act of Congress, the House has had to intervene in all of the pending cases to defend Congress’ handiwork and do the Department’s job for it. And to be clear: the Justice Department not only has ceased to defend DOMA but is affirmatively attacking the statute and the motives of the
the confusion in the lower courts by additionally concluding that DOMA is unconstitutional sex discrimination. Id. at 577. It should be noted that the DOMA issue in Balas was generated by the Department’s incoherent position that it will enforce but not defend DOMA. The Department’s own U.S. Trustee affirmatively created the constitutional issue by moving to dismiss, on the basis of DOMA, a joint bankruptcy petition filed by a same-sex couple; the U.S. Trustee, having created the issue, then refused to defend the statute on the basis of the Attorney General’s direction not to defend the statute; and no other party defended DOMA in that case.

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legislators who enacted it, many of whom still serve. The lower court litigation thus inverts the normal order and pits the political branches against each other. Only this Court has the capacity to settle this matter. Unless and until this Court settles the constitutional matter, the executive will continue to enforce the statute while attacking it in court. Only this Court has the potential to redirect the fractious debate to the democratic process where issues like this are best resolved. II. The Decision Below Conflicts With This
Court’s Decision in Baker v. Nelson and With the Decisions of Other Courts of Appeals. The decision below not only invalidates an Act of Congress on constitutional grounds, but it does so in a way that conflicts with binding precedent of this Court—Baker v. Nelson, 409 U.S. 810 (1972)—and other circuits. In Baker, the State of “Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute.” App. 8a. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The plaintiffs in Baker, a same-sex couple, were denied a marriage license “on the sole ground that [they] were of the same sex.” Id. at 185. They brought an equal protection challenge to Minnesota’s statute, arguing that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” Id. at 186. The Minnesota Supreme Court rejected their challenge, holding that equal protection “is not offended by the state’s classification of persons authorized to marry.

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There is no irrational or invidious discrimination.” Id. at 187.
The plaintiffs appealed to this Court under former 28 U.S.C. § 1257(2). Their Jurisdictional Statement presented the question “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights [to] equal protection.” Jurisdictional Statement 3, Baker v. Nelson, No. 711027 (S.Ct. Feb. 10, 1972). The plaintiffs argued to this Court that Minnesota law unconstitutionally discriminated based on both sex and sexual orientation. On the latter point, they argued that “there is no justification in law for the discrimination against homosexuals,” and that they were “similarly circumstanced to childless heterosexual couples” and therefore entitled to the same “benefits awarded by law.” Id. at 10, 17 (quotation marks omitted). They argued that the Minnesota marriage statute failed both heightened scrutiny and rational basis review. See id. at 15 (arguing that the state’s proscription of “single sex marriage” did not “describe a legitimate government interest which is so compelling that no less restrictive means can be found” and in the alternative that “Minnesota’s proscription simply has not been shown to be rationally related to any governmental interest”).
This Court dismissed the appeal “for want of a substantial federal question.” Baker, 409 U.S. at 810. Such dismissals are, of course, decisions on the merits, and lower courts are “not free to disregard” them. Hicks v. Miranda, 422 U.S. 332, 344 (1975). “Summary affirmances and dismissals for want of a substantial federal question without doubt reject the

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specific challenges presented in the statement of jurisdiction * * *.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).
Here, the First Circuit recognized that Baker “is binding precedent.” App. 8a. It also recognized that, unless and until this Court says otherwise, Baker forecloses any arguments that “presume or rest on a constitutional right to same-sex marriage.” App. 8a. Having recognized those things, the First Circuit should have recognized that Baker controls this case. As the First Circuit acknowledged, Baker stands for the proposition that a state may use the traditional definition of marriage without violating equal protection. It necessarily follows that Congress may use the same traditional definition of marriage for federal purposes without violating equal protection.7
The First Circuit was able to evade the clear implications of Baker for this case only by creating an entirely novel form of equal protection review that deviates from this Court’s precedents and the law in virtually every other circuit. Those further conflicts only underscore the need for this Court’s review. See Braxton v. United States, 500 U.S. 344, 347 (1991) (“A principal purpose for which we use our certiorari jurisdiction * * * is to resolve conflicts among the United States courts of appeals.”).
7 “[T]his Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 217 (1995) (quotation marks omitted). Thus, the fact that Baker involved the Fourteenth Amendment, while this case involves the Fifth Amendment, is of no moment.

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In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982), the Ninth Circuit held that it was constitutional for Congress to limit a spousal immigration preference to opposite-sex spouses. The case involved a same-sex couple who “were ‘married’ by a minister” and “obtained a marriage license from the county clerk in Boulder, Colorado.” 673 F.2d at 1038. The Ninth Circuit assumed arguendo that the marriage was valid under state law, see id. at 1039, but found that “Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b)” of the Immigration and Nationality Act. Id. at 1041.
The Ninth Circuit then rejected the couple’s claim that “the law violates the equal protection clause because it discriminates against them on the bases of sex and homosexuality.” Id. (footnote omitted). Applying the rational basis test, the Ninth Circuit held “that Congress’s decision to confer spouse status under section 201(b) only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042.
Finding it unnecessary to enumerate all of the rational bases Congress possibly could have had, the Ninth Circuit said that Congress rationally could have “determined that preferential status is not warranted” for same-sex marriages because such “marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores.” Id. at 1042, 1043. Finally, although Adams arose in the immigration context, the Ninth

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Circuit applied ordinary rational basis review, stating that “[t]here is no occasion to consider in this case whether some lesser standard of review should apply.” Id. at 1042.

The decision below also conflicts with McConnell v.

Nooner, 547 F.2d 54 (8th Cir. 1976) (per curiam).

That case involved the same two men who filed suit

in Baker v. Nelson. Unlike the Baker case, in which

the men were seeking to be married, in McConnell

the men already had “obtained a marriage license

from the Blue Earth County Court Clerk” and “were

‘married’ by a minister.” Id. at 55. Baker, a veteran,

then petitioned for increased veteran’s education

benefits “on grounds that McConnell was his

dependent spouse.”

Id.

The Veterans

Administration denied the request “on grounds that

McConnell was not the spouse of the veteran Baker.”

Id. The district court dismissed the suit “on the

basis that Baker v. Nelson, supra, was dispositive of

the issues.” Id. The Eighth Circuit agreed and

affirmed. Id.8

Additionally, the First Circuit’s decision conflicts with the holdings of ten other circuits that sexual orientation is not a suspect classification and hence ordinary rational basis review applies to such classifications. See, e.g., Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012) (“Because this court has not recognized sexual orientation as a suspect classification, Davis’s claim is governed by

8 See also McConnell v. United States, 188 F. App’x 540, 541 (8th Cir. 2006) (per curiam) (affirming the dismissal of McConnell’s “complaint seeking a federal tax refund arising from his marital status and seeking a declaration that his 1971 Minnesota same-sex marriage is lawful”).

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rational basis review.”); Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 n.9 (10th Cir. 2008) (“[T]his court, like many others, has previously rejected the notion that homosexuality is a suspect classification.”) (citing cases from the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, District of Columbia, and Federal Circuits); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (“[A]ll of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.”) (citing cases), cert. denied, 543 U.S. 1081 (2005); Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 684-85 (D.C. Cir. 1994) (en banc); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.3d 97, 101-104 (D.C. Cir. 1987); see also Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) (applying ordinary rational basis review to, and upholding, the military’s “don’t ask, don’t tell” policy), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). Every circuit that has ruled on the issue— i.e., every circuit except the Second and Third Circuits—has held that sexual orientation classifications are not suspect and thus are reviewed under the rational basis test.

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For example, Citizens for Equal Protection v. Bruning, supra, involved an equal protection challenge to Article I, § 29 of the Nebraska Constitution, which provides that “[o]nly marriage between a man and a woman shall be valid or recognized in Nebraska.” Neb. Const. art. I, § 29. The Eighth Circuit held that “§ 29 should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny.” Citizens for Equal Protection, 455 F.3d at 866.
Similarly, as discussed above, the Ninth Circuit in Adams v. Howerton applied the rational basis test in reviewing a Fifth Amendment equal protection challenge to Congress’ decision to limit an immigration preference for spouses to opposite-sex spouses. See Adams, 673 F.2d at 1042.
As explained next, the First Circuit’s effort to evade this wall of precedent, and its own circuit law, by invoking an entirely novel form of equal protection review only underscores the need for plenary review. III. The Court of Appeals Invented a New
Standard of Equal Protection Review. The First Circuit correctly recognized that it would be error to apply either strict or intermediate scrutiny to Section 3 of DOMA and that the statute passes rational basis scrutiny. But instead of drawing the only conclusion permitted by wellestablished law—that a law not subject to strict or intermediate scrutiny and supported by a rational basis is constitutional—the First Circuit found another way to invalidate DOMA, by inventing a

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previously unknown standard of equal protection review.9
This Court’s cases recognize three, and only three, levels of equal protection review, and the Court has not expressed any enthusiasm for complicating matters further.
In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. Classifications based on race or national origin, and classifications affecting fundamental rights, are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.
9 Although the First Circuit denied that it was applying any form of heightened scrutiny, it described Section 3 of DOMA as drawing a distinction “against a historically disadvantaged group * * * less able to protect itself through the political process.” App. 21a. But the notion that the same-sex marriage movement lacks political power simply blinks reality. Not only is the executive branch attacking DOMA in this and other cases, but same-sex marriage is supported by President Obama, Vice President Biden (who voted for DOMA as a Senator in 1996), the Senate majority leader, and the House minority leader. Nearly one-third of the Members of the House filed an amici brief in the court below attacking both the wisdom and constitutionality of DOMA. The political process stands ready to address this matter with ample political support for both sides of the debate.

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Clark v. Jeter, 486 U.S. 456, 461 (1988) (citations omitted).
In defense of its decision to eschew “classic rational basis review” in favor of “intensified scrutiny,” App. 11a, the First Circuit heavily relied upon three of this Court’s cases: Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). See App. 12a-15a. But none of those cases supports a deviation from the well-established three tiers of equal protection review, let alone justifies the First Circuit’s novel federalism-based standard.
In Romer, this Court went out of its way to make clear that it was applying the “conventional” rational basis test to Colorado’s Amendment 2. This Court said that
if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. 312 (1993). Amendment 2 fails, indeed defies, even this conventional inquiry. Romer, 517 U.S. at 631-632 (emphasis added). Thus, contrary to the First Circuit’s assertion (and the complaints of the Romer dissent, see id. at 651 (Scalia, J., dissenting)), the Romer Court did indeed apply “conventional rational basis review.” App. 14a. See also Romer, 517 U.S. at 635 (“[A] law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.”) (citation omitted).

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Nor does Cleburne support what the First Circuit did here. In that case, the Fifth Circuit “erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.” 473 U.S. at 442. Here, the First Circuit committed a similar, but even more glaring, error in refusing to apply conventional rational basis review to DOMA while expressly acknowledging that it would survive conventional scrutiny. See App. 10a (“Under [the conventional] rational basis standard, the Gill plaintiffs cannot prevail.”). In Cleburne, this Court applied “[t]he general rule” that “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest,” and found the ordinance lacking under that standard. 473 U.S. at 440. The First Circuit’s approach thus draws no support from Cleburne.
Finally, in Moreno, the only one of the three cases to involve a federal statute, this Court applied “traditional equal protection analysis.” 413 U.S. at 533. Accord id. at 538 (“[t]raditional equal protection analysis”). Reciting the traditional test, this Court stated that “a legislative classification must be sustained, if the classification itself is rationally related to a legitimate government interest.” Id. at 533. Here, the First Circuit recognized that Section 3 of DOMA passes traditional equal protection analysis, but it struck down DOMA nonetheless. Nothing in this Court’s cases supports that counterintuitive result.

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As further justification for its new form of equal protection review, the First Circuit relied upon purported “federalism concerns.” See supra p. 15. The court’s invocation of federalism concerns is doubly surprising. First, this Court has gone to great lengths to underscore that there is only one constitutional standard of equal protection, and it applies equally to federal and state actions. See supra n.7. Second, and even more fundamentally, the Constitution’s equal protection guarantees exist to constrain government action, not to protect the states. “[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.” Adarand, 515 U.S. at 227 (emphases in original). A federalism overlay to equal protection is fundamentally misplaced.
Moreover, the court of appeals specifically rejected the argument that Section 3 of DOMA violates the Tenth Amendment or the Spending Clause. As to the Tenth Amendment, the court found that DOMA “governs only federal programs and funding” and “does not commandeer state governments or otherwise directly dictate the internal operations of state government.” App. 16a-17a (emphasis in original) (citing Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992)). And as to the Spending Clause, the court concluded that DOMA does not “run afoul of the ‘germaneness’ requirement that conditions on federal funds must be related to federal purposes.” App. 17a (citing South Dakota v. Dole, 483 U.S. 203, 208 (1987)). “This requirement is not implicated,” the First Circuit explained, “where, as here, Congress merely defines the terms of the federal

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benefit.” App. 17a. But for the same basic reason— that Section 3 only implicates the definition of marriage for federal law purposes—a federalismbased intensified scrutiny would be inapplicable to DOMA even if it existed, which it does not.
The First Circuit cited (App. 17a) United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), but those are Commerce Clause cases. They provide no support for the First Circuit’s invention of an “intensified scrutiny” standard of equal protection review under the Due Process Clause of the Fifth Amendment. The First Circuit’s citation (App. 18a) to Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009), is similarly off base. That opinion discussed the Voting Rights Act’s intrusion on state sovereignty. It did not call for “closer than usual” review of equal protection claims in any context.
The First Circuit’s application of a new form of equal protection review is dubious for a final reason. The court stated that its new standard of review was based not on any existing precedent of this Court, but on a prediction of what this Court would do were DOMA before it. See App. 15a (predicting that the “deference accorded to ordinary economic legislation * * * would not be extended to DOMA by the Supreme Court”). But the proper role of a court of appeals is to apply this Court’s cases, not to forecast doctrinal developments that this Court might (or might not) make someday in the future. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

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This Court has never recognized a standard of equal protection review hovering between the rational basis test and intermediate scrutiny, and no precedent of this Court supports the application of anything other than ordinary rational basis review to DOMA. Indeed, this Court’s decision in Baker v. Nelson holds that a classification based on the traditional definition of marriage does not violate equal protection. The First Circuit erred, and did so egregiously, by striking DOMA down on the basis of a prediction that this Court would apply a previously unknown standard of “intensified scrutiny” to DOMA.
Although the First Circuit erred in inventing a new form of equal protection review, it was certainly correct about one point: “only the Supreme Court can finally decide” this case. App. 7a. Further litigation in the lower courts promises only further conflict between the political branches before courts that cannot definitively decide the issue. Only this Court has the power to settle this issue and return the debate to the democratic process where it belongs.

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CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted.
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI CONOR B. DUGAN NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Petitioner
June 29, 2012

 
 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS

__________________________________________

NANCY GILL & MARCELLE LETOURNEAU, )

MARTIN KOSKI & JAMES FITZGERALD,

)

DEAN HARA,

)

MARY RITCHIE & KATHLEEN BUSH,

)

MELBA ABREU & BEATRICE HERNANDEZ, )

JO ANN WHITEHEAD & BETTE JO GREEN, )

RANDELL LEWIS-KENDELL,

)

HERBERT BURTIS, and

)

KEITH TONEY & ALBERT TONEY III,

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL MANAGEMENT, )

UNITED STATES POSTAL SERVICE,

)

JOHN E. POTTER, in his official capacity as

)

the Postmaster General of the United States of )

America,

)

MICHAEL J. ASTRUE, in his official capacity )

as the Commissioner of the Social Security

)

Administration,

)

HILLARY RODHAM CLINTON, in her official )

capacity as United States Secretary of State,

)

ERIC H. HOLDER JR., in his official capacity )

as the United States Attorney General, and

)

THE UNITED STATES OF AMERICA,

)

Defendants.

)

__________________________________________)

CIVIL ACTION NO.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, OR OTHER RELIEF AND FOR REVIEW OF AGENCY ACTION

Introduction/Nature of the Action

1.

This is a case about federal discrimination against gay and lesbian

individuals married to someone of the same sex, and the harm that discrimination has

caused each plaintiff.

2.

Plaintiffs in this action are citizens of the Commonwealth of

Massachusetts and the United States of America. Each of the plaintiffs is, or was until

becoming a widower, legally married to a person of the same sex in accordance with the

requirements of Massachusetts state law.

3.

Although the federal government does not license marriages, a large

number of its programs take marital status into account in determining eligibility for

federal protections, benefits and responsibilities. Statute, precedent, and practice

establish state law as the touchstone for determining a couple’s marital status for

purposes of determining eligibility for federal programs.

4.

Each plaintiff, or his or her spouse, has made one or more requests to

the appropriate agencies or authorities within the federal government for treatment as a

married couple, a spouse, or a widower with respect to particular programs or benefits.

Yet each of the plaintiffs has been denied and is still being denied legal protections and

benefits under federal law that are available to a similarly situated person married to an

individual of a different sex under Massachusetts law.

5.

With each denial of specific protections or benefits, the defendants or

their agents have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part

as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”) and have stated that the federal government will

only respect marriages between a man and a woman.

2

6.

Several of the plaintiffs, as set forth below, seek spousal protections

based on their employment with, or their spouse’s employment with, the United States

government. Plaintiff Nancy Gill, a 21-year employee of the United States Post Office,

already receives “Self and Family” health insurance coverage for herself and the two

children she has with her spouse, plaintiff Marcelle Letourneau, through her job at the

Post Office. Yet, unlike postal workers married to spouses of the opposite sex (see below

at Paragraphs 59-97), she is unable to add her spouse, Marcelle, to that plan or to the

vision benefit plan, nor can she use her flexible spending account for Marcelle’s medical

expenses. Plaintiff Martin Koski, a retiree from the Social Security Administration, has

been denied health insurance coverage for his spouse, plaintiff James Fitzgerald, although

retired employees who are married to someone of a different sex may add their spouses to

such coverage, as described below at Paragraphs 98-123. Plaintiff Dean Hara is the

surviving spouse of Gerry Studds, a retired Member of the United States Congress. Dean

has been denied both health insurance and the survivor annuity normally available to

surviving spouses, which is described below at Paragraphs 124-169. In each instance,

DOMA, 1 U.S.C. § 7, has barred the plaintiffs’ access to benefits routinely granted to

others in similar circumstances.

7.

Several of the plaintiffs, as set forth below, have been denied their

correct spousal status by the Internal Revenue Service (“IRS”) on the basis of DOMA, 1

U.S.C. § 7, and thus have been required to pay more in federal income taxes than other

similarly situated people married to someone of a different sex. Plaintiffs Melba Abreu

and Beatrice Hernandez, as described below at Paragraphs 204-234, and plaintiffs Mary

Ritchie and Kathleen Bush, as described below at Paragraphs 170-203, seek to file their

3

federal income tax returns as “Married Filing Jointly” rather than as “Single” or “Head of

Household.” Plaintiff Mary Ritchie also seeks to contribute funds to a “spousal IRA” for

her spouse Kathleen Bush, to contribute to her retirement security, as an income-earning

person who is married to someone of a different sex may do (see below at Paragraph

187). Plaintiffs Abreu and Hernandez and plaintiffs Ritchie and Bush filed amended

federal income tax returns with the IRS, asking to be re-categorized as married taxpayers

and requesting refunds. The IRS rejected each amended federal income tax return and

accompanying refund claim on the basis of DOMA, 1 U.S.C. § 7.

8.

Several of the plaintiffs, as set forth below, seek spousal protections

afforded by the Social Security program. Three different widowers, plaintiff Randell

Lewis-Kendell, as described below at Paragraphs 258-286, plaintiff Herbert Burtis, as

described below at Paragraphs 287-310, and plaintiff Dean Hara, as described below at

Paragraphs 124-169, seek the “One-Time Lump-Sum Death Benefit” normally available

upon the death of a spouse. Plaintiff Burtis, relying on the long work record of his

spouse, also seeks the survivor benefit normally available to a widower married to

someone of the opposite sex, as described below at Paragraphs 300-310. This benefit

would increase his monthly Social Security payment by approximately $700 per month,

to the level of the monthly payment that his deceased spouse John Ferris received before

his death. As a person married to a spouse of a different sex is entitled to do (see below

at Paragraph 246), plaintiff Jo Ann Whitehead, as described below at Paragraphs 235-57,

seeks to increase her monthly Social Security payment based on the work record of her

spouse, plaintiff Bette Jo Green, who has had higher earnings during their long

4

relationship. Each of these plaintiffs has been denied these benefits by the Social

Security Administration because of DOMA, 1 U.S.C. § 7.

9.

Plaintiff Keith Toney seeks a passport bearing his correct name, which

he lawfully changed as a consequence of his 2004 marriage to plaintiff Albert Toney III,

as described below at Paragraphs 311-328. Invoking DOMA, 1 U.S.C. § 7, the State

Department denied plaintiff Keith Toney’s request for a passport in his married name

despite submission of his marriage certificate and other government-issued identification,

although it accepts name changes effectuated through marriage for a person married to an

individual of a different sex who submits the same documentation.

10.

This is an action for declaratory and injunctive relief pursuant to 28

U.S.C. §§ 2201-2202 and Fed. R. Civ. P. Rule 57 and for review of agency action

pursuant to 5 U.S.C. §§ 701-706. It seeks a determination that DOMA, 1 U.S.C. § 7, as

applied to plaintiffs, violates the United States Constitution by refusing to recognize

lawful marriages for purposes of the laws governing benefits for federal employees and

retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations

governing issuance of passports. The result of these violations of the Constitution is that

each of the plaintiffs has been denied, and will continue to be denied, legal protections

and benefits under federal law that would be available to them if their spouses were of the

opposite sex.

Jurisdiction and Venue

11.

This action arises under the Constitution of the United States and the

laws of the United States, including 26 U.S.C. § 7422. The jurisdiction of this Court is

5

invoked pursuant to 5 U.S.C. § 8912; 5 U.S.C. § 8991; 28 U.S.C. § 1331; 28 U.S.C.

§ 1346(a)(1); and 42 U.S.C. § 405(g).

12.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) and 28

U.S.C. § 1402(a)(1), because the plaintiffs reside in this district, and the events giving

rise to these claims arose in this district.

Parties

13.

Plaintiff NANCY GILL is a citizen of the Commonwealth of

Massachusetts and resides in Bridgewater, Massachusetts.

14.

Plaintiff MARCELLE LETOURNEAU is a citizen of the

Commonwealth of Massachusetts and resides in Bridgewater, Massachusetts.

15.

Plaintiff MARTIN KOSKI is a citizen of the Commonwealth of

Massachusetts and resides in Bourne, Massachusetts.

16.

Plaintiff JAMES FITZGERALD is a citizen of the Commonwealth of

Massachusetts and resides in Bourne, Massachusetts.

17.

Plaintiff DEAN HARA is a citizen of the Commonwealth of

Massachusetts and resides in Boston, Massachusetts.

18.

Plaintiff MARY RITCHIE is a citizen of the Commonwealth of

Massachusetts and resides in Framingham, Massachusetts.

19.

Plaintiff KATHLEEN BUSH is a citizen of the Commonwealth of

Massachusetts and resides in Framingham, Massachusetts.

20.

Plaintiff MELBA ABREU is a citizen of the Commonwealth of

Massachusetts and resides in Boston, Massachusetts.

6

21.

Plaintiff BEATRICE HERNANDEZ is a citizen of the Commonwealth

of Massachusetts and resides in Boston, Massachusetts.

22.

Plaintiff JO ANN WHITEHEAD is a citizen of the Commonwealth of

Massachusetts and resides in Jamaica Plain, Massachusetts.

23.

Plaintiff BETTE JO GREEN is a citizen of the Commonwealth of

Massachusetts and resides in Jamaica Plain, Massachusetts.

24.

Plaintiff RANDELL LEWIS-KENDELL is a citizen of the

Commonwealth of Massachusetts and resides in Harwich Port, Massachusetts.

25.

Plaintiff HERBERT BURTIS is a citizen of the Commonwealth of

Massachusetts and resides in Sandisfield, Massachusetts.

26.

Plaintiff KEITH TONEY is a citizen of the Commonwealth of

Massachusetts and resides in Jefferson, Massachusetts.

27.

Plaintiff ALBERT TONEY III is a citizen of the Commonwealth of

Massachusetts and resides in Jefferson, Massachusetts.

28.

Defendant OFFICE OF PERSONNEL MANAGEMENT is an

independent establishment of the Executive Branch of the government of the United

States. Its actions, rules, and regulations are subject to review by the federal courts.

29.

Defendant UNITED STATES POSTAL SERVICE is an independent

establishment of the Executive Branch of the government of the United States,

empowered by Congress to sue and be sued in its own name.

30.

Defendant JOHN E. POTTER is currently the Postmaster General of

the United States of America. In his official capacity, the Postmaster General is

7

responsible for the administration of employee-related benefits within the United States

Postal Service.

31.

Defendant MICHAEL J. ASTRUE is currently the Commissioner of

the Social Security Administration, an independent agency of the United States

Government. In his official capacity, the Commissioner of the Social Security

Administration is responsible for the administration and enforcement of the Social

Security Act.

32.

Defendant HILLARY RODHAM CLINTON is currently the United

States Secretary of State. In her official capacity, the Secretary of State is responsible for

the administration and operation of the Passport Services Directorate.

33.

Defendant ERIC H. HOLDER JR. is currently the Attorney General of

the United States. In his official capacity, the Attorney General is the chief federal

official responsible for the enforcement of all federal statutes in accordance with the

Constitution of the United States of America.

34.

Defendant THE UNITED STATES OF AMERICA is the proper

defendant in a complaint seeking refund of federal income taxes pursuant to 26 U.S.C.

§ 7422(f)(1).

Facts Common To All Plaintiffs And All Claims

35.

Each plaintiff is a citizen of the Commonwealth of Massachusetts and

of the United States and has borne the obligations of citizenship by paying taxes and

contributing to Social Security.

36.

As United States citizens, each of the plaintiffs is entitled to equal

consideration and treatment from the federal government, and with respect to each and

8

every program operated by the federal government, including employment and retirement

benefit programs arising from employment with the federal government, Social Security,

taxation, and passport services.

37.

Each of the plaintiffs is, or was until becoming a widower, married to

a person of the same sex in accordance with the legal requirements of the Commonwealth

of Massachusetts. Each of the plaintiffs married to nurture and support his or her family

and, for some plaintiffs, to raise children. Each of these marriages was duly recognized

under state law. However, DOMA, 1 U.S.C. § 7, burdens their ability to form and

support their marriages and families and to raise their children.

38.

As a sovereign State of the United States of America, the

Commonwealth of Massachusetts (hereafter, “the Commonwealth,” or “Massachusetts”)

has, since its ratification of the United States Constitution and, indeed, before then,

exclusively established and ordained the legal requirements for civil marriage within the

Commonwealth and the status of spouses to such marriages entered into within the

Commonwealth.

39.

Effective May 17, 2004, with the implementation of the Massachusetts

Supreme Judicial Court’s constitutional determination in Goodridge v. Dept. of Public

Health, 440 Mass. 309 (2003), same-sex couples who otherwise complied with the

requirements for obtaining a marriage license in the Commonwealth of Massachusetts

were and are entitled to marry under the law of the Commonwealth.

40.

Since May 17, 2004, the Commonwealth of Massachusetts, pursuant to

the Constitution of Massachusetts, has created, established, and recognized a single

9

marital status that is available to every qualifying couple, whether same-sex or different-

sex, i.e., regardless of the sex of the two parties to the marriage.

41.

Massachusetts has also made a political determination that different-

sex couples and same-sex couples must be treated the same with respect to marriage and

its attendant rights and responsibilities. The Massachusetts Legislature has rejected every

proposed constitutional amendment that would have reversed the Goodridge decision,

most recently at the constitutional convention session of June 14, 2007. Uncorrected

Proof of the Journal of the Senate, Thursday, June 14, 2007.

42.

The plaintiffs are similarly situated to persons married to individuals

of a different sex and, under Massachusetts law, are accorded the same status,

responsibilities, and protections as other married persons. Federal law, however, treats

same-sex opposite-sex couples differently in the specific ways set forth in Paragraphs 59

through 328 below.

43.

The federal government of the United States has, since its founding

and at least until 1996, recognized the exclusive authority every state possesses, as an

essential part of its sovereignty, to determine the civil status and capacities of all its

inhabitants, including the absolute right to prescribe the conditions upon which the

marriage relation between its own citizens shall be created.

44.

Throughout history and at least until 1996, the United States has

consistently deferred to the sovereignty of the States when the marital status of an

individual has been used as a marker of eligibility or access to some benefit, right, or

responsibility identified by the federal government.

10

45.

In 1996, in passing DOMA, 1 U.S.C. § 7, Congress took the

unprecedented step of preemptively nullifying a class of marriages that it expected states

would begin to license at some point in the future, that is, marriages of same-sex couples.

46.

If not for the application of DOMA, 1 U.S.C. § 7, to all federal

programs, the plaintiffs, as persons married under Massachusetts law, would receive the

same status, responsibilities and protections under federal law as other married persons.

Yet when same-sex couples began to marry in Massachusetts, DOMA, 1 U.S.C. § 7,

operated to single out one class of marriages legally recognized by the Commonwealth of

Massachusetts, those of same-sex couples, and to deny their existence for all conceivable

ends and purposes of federal law.

47.

Plaintiffs have been denied legal protections normally available to

spouses under federal law. Despite plaintiffs’ willingness to assume the legally imposed

responsibilities of marriage at the federal level, just as they do at the state level, they are

prevented from doing so by DOMA, 1 U.S.C. § 7.

The “Defense of Marriage Act” (“DOMA, 1 U.S.C. § 7”)

48.

Congress enacted the so-called “Defense of Marriage Act” (“DOMA,

1 U.S.C. § 7”), P.L. 104-199, in 1996, and it was approved on September 21, 1996.

49.

Section 3 of DOMA, 1 U.S.C. § 7, provides in its entirety as follows:

Sec. 3 DEFINITION OF MARRIAGE.

(a) IN GENERAL – Chapter 1 of title 1, United States Code is amended by adding at the end the following:

§7. Definition of ‘marriage’ and ‘spouse’

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus

11

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.”

(b) CLERICAL AMENDMENT. – The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

“7. Definition of ‘marriage’ and ‘spouse’.”

50.

In a 1997 Report, the General Accounting Office (“GAO”) estimated

that at least 1,049 federal laws were affected by DOMA, 1 U.S.C. § 7, because those laws

depended on or in some way related to marital status. U.S. Gen. Accounting Office,

GAO/OGC-97-16 Defense of Marriage Act (1997), available at

http://www.gao.gov/archive/1997/og97016.pdf. A follow-up study in 2004 found that

1,138 laws tied benefits, protections, or responsibilities to marital status. U.S. Gov.

Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at

http://www.gao.gov/new.items/d04353r.pdf.

51.

With regard to a gay or lesbian individual married to someone of the

same sex, DOMA, 1 U.S.C. § 7, has overridden the longstanding deference of federal to

state law in determining the marital status of an individual seeking the benefit or

responsibility of any federal law triggered by a person’s state-established marital status,

and categorically denies both rights and responsibilities.

52.

The official House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No.

104-664, advances four rationales for why the federal government drew a line between its

treatment of an individual married to a person of the same sex versus an individual

married to a person of the opposite sex. Those reasons are:

12

(1) H.R. 3396 [the bill number] ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL HETEROSEXUAL MARRIAGE.

(2) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY.

(3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF GOVERNANCE.

(4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES.

53.

None of these interests is adequate to justify discrimination against

married persons in same-sex relationships. The first two rationales have nothing to do

with any federal interest and simply reflect a belief that same-sex couples should not be

permitted to marry.

54.

The first claimed federal “interest” in “defending” “traditional

heterosexual marriage” simply restates the government’s intent to discriminate against

same-sex couples and provides no independent justification for the government’s

discriminatory action. The federal government has long accepted state determinations of

marital status, even in the face of changes in marriage licensing by the states. The only

state-licensed marriages it categorically refuses to respect are those of same-sex couples.

In short, this “interest” repeats the distinction drawn by DOMA, 1 U.S.C. § 7, that is,

between married couples of the same sex and married couples of different sexes, but it

does not explain it.

55.

The second claimed federal interest in “morality” is another reframing

of Congress’s disapproval of gay men and lesbians. Discrimination for its own sake is

not a legitimate purpose upon which disadvantageous classifications may be imposed.

13

56.

The third claimed interest in “protecting state sovereignty” is actually

subverted by DOMA, 1 U.S.C. § 7, not advanced by it. Congress contravened inherent

constitutional principles of federalism and failed to honor our nation’s system of dual

sovereignty in enacting DOMA, 1 U.S.C. § 7, because it is the states, and not the federal

government, that regulate marriage and determine family status. Congress did not

“protect” state sovereignty in enacting DOMA, 1 U.S.C. § 7, since it dishonored the

sovereignty of the states that license or recognize marriages of same-sex couples.

57.

As to the fourth claimed interest, while the public fisc is always a

matter of concern, it is not a legitimate interest in the context of Congressionally

provided protections and responsibilities for spouses and families. Congress has yet to

identify a reason why gay and lesbian individuals who have met their obligations as

taxpaying citizens and who are married to someone of the same sex must be denied

protections available to persons who are married to someone of a different sex. Singling

out same-sex couples who are married among all married persons is simply an expression

of the intent to discriminate against gay people.

58.

At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men

and lesbians and their relationships, an illegitimate federal interest.

Facts Particular To Individual Plaintiffs

Plaintiffs Nancy Gill and Marcelle Letourneau

59.

Plaintiff Nancy Gill (“Nancy”) is, and was at all relevant times, an

employee of the defendant, United States Postal Service (“Postal Service”). Nancy has

worked for the Postal Service since 1987.

14

60.

Nancy met her spouse, plaintiff Marcelle Letourneau (“Marcelle”), in

1978, and they have been a committed couple since 1980.

61.

Marcelle has been employed in administrative capacities by a nursing

services provider in Massachusetts for more than 25 years. She also works as an

independent medical transcriptionist.

62.

After 12 years together, Nancy and Marcelle had their first child, a

daughter, now age 16. A son, now age 9, followed. Nancy worked the night shift at the

Post Office for many years to be available to her children during the day. Both children

have hyphenated last names with the surnames of their two parents.

63.

Nancy and Marcelle live in a home they jointly own in Bridgewater,

Massachusetts, together with their children, who attend public school.

64.

After 24 years together, on Friday, May 21, 2004, Nancy and Marcelle

were married by a justice of the peace in Brockton, Massachusetts in strict and complete

accordance with Massachusetts law. They then went away together for the weekend with

their family to celebrate.

65.

Although Nancy and Marcelle married to solemnize their longstanding

commitment to each other and their family, they also looked forward to the spousal

benefits they expected to receive from the Postal Service.

66.

As an employee of the United States Postal Service, Nancy is enrolled

in the Federal Employees Health Benefits Program (“FEHB”).

67.

Nancy has been enrolled in FEHB with a “Self and Family” Plan since

the birth of her and Marcelle’s daughter in January 1993. The plan now covers herself

and their two children.

15

68.

According to the FEHB Handbook, “Self and Family” enrollment is

described as follows:

Self and Family

A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.

You may enroll for self and family coverage before you have any eligible family members. Then, a new eligible family member (such as a newborn child or a new spouse) will be automatically covered by your family enrollment from the date he/she becomes a family member. When a new family member is added to your existing self and family enrollment, you do not have to complete a new SF 2809 or other appropriate request, but your carrier may ask you for information about your new family member. You will send the requested information directly to the carrier. Exception: if you want to add a foster child to your coverage, you must provide eligibility information to your employing office.

FEHB Handbook, Enrollment, Types of Enrollment (emphasis supplied).

69.

According to 5 U.S.C. § 8901(5), “member of family” is defined, in

part, to “mean[] the spouse of an employee or annuitant and an unmarried child under 22

years of age ….”

70.

Although Marcelle should have been automatically covered by

Nancy’s Self and Family Plan upon Nancy and Marcelle’s marriage on May 21, 2004,

Nancy took the additional, permitted step of submitting a standard SF 2809 form to her

employing office, dated May 24, 2004, listing as her family members her children and

her spouse. This form was submitted on the Monday following Nancy and Marcelle’s

marriage the previous Friday.

16

71.

Nancy’s SF 2809 form was received in her employing office on May

24, 2004.

72.

On May 25, 2004, Nancy had a conversation with her Human

Resources Manager, Ann Mailloux, concerning her rights to benefits coverage for her

spouse, Marcelle.

73.

By letter dated June 4, 2004, the United States Postal Service formally

advised Nancy “that the Postal Service is unable to provide you with benefit coverage for

your partner [sic].” Letter from Ann Mailloux, Manager, Human Resources, USPS,

Southeast New England Performance Cluster, to Nancy M. Gill (June 4, 2004).

74.

The June 4, 2004, letter provided the following reasoning:

The Postal Service is bound by rules and regulations issued by the Office of Personnel Management and applicable federal law (as opposed to state law). Same-sex partners are not considered eligible under Federal Employees Health Benefits (FEHB) or Federal Employees Group Life Insurance (FEGLI) in that federal law defines family members (which are covered) as a spouse and an unmarried dependent child under age 22. Public Law 104-199, Defense of Marriage Act, states, that the word ‘marriage’ means 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.

75.

Nancy and Marcelle were shocked that Marcelle was denied benefits

under Nancy’s plan. On June 7, 2004, Nancy filed a request for pre-complaint

counseling under the Equal Employment Opportunity Process and was advised to

complete and return PS Form 2564-A within 10 days.

76.

Nancy completed PS Form 2564-A within 10 days, asserting that she

had not been treated equally and had been “discriminated against for being a lesbian.” PS

Form 2654-A, p. 1, Section B. Specifically, she stated: “Anyone who has gotten married

while employed by the US Postal Service has the right to put their new spouse on their

17

Health Insurance. That new spouse is entitled by marriage to a host of benefits which my

spouse is denied. How can this be called anything but discrimination?” PS Form 2654-

A, p. 2, Section D.

77.

For a resolution to her pre-complaint, Nancy stated: “Allow me to

have the same rights as my co-workers who are married.” PS Form 2654-A, p. 2, Section

F.

78.

By letter dated June 21, 2004, USPS NEEO Dispute Resolution

Specialist Debra A. DeSantis corresponded with Nancy to “conclude the pre-complaint

stage of the EEO Complaints Process.” Letter from Debra DeSantis, NEEO Dispute

Resolution Specialist, USPS, Southeast New England Performance Cluster, to Nancy Gill

(June 21, 2004).

79.

The June 21, 2004 letter apprised Nancy that: (1) benefits are

administered by the Office of Personnel Management, which relies on Public Law 104-

199, i.e., DOMA, 1 U.S.C. § 7, to exclude the marriages of same-sex couples from the

requested benefit; and (2) as to “the factors of discrimination as depicted [sic] in the Civil

Rights Act, Title VII does not include sexual orientation as a protected class.”

80.

On June 29, 2004, Nancy signed and filed an “EEO Complaint of

Discrimination in the Postal Service,” seeking “the same rights and benefits and

responsibilities as any one of my co-workers who are also married.” Case No. 1B-024-

0007-04; Complaint, Item No. 17.

81.

By decision dated July 20, 2004, Nancy’s Complaint in Case No. 1B-

024-007-04 was dismissed for failure to state a claim because discrimination based on

sexual orientation “is not actionable under EEOC Regulations.”

18

82.

Because the Office of Personnel Management, following DOMA, 1

U.S.C. § 7, would not permit Nancy to cover Marcelle through her family health

insurance, Nancy and Marcelle had to purchase health insurance for Marcelle that would

otherwise have cost nothing, since Nancy already had the “Self and Family” plan.

83.

Because of the extra expense of health insurance for Marcelle, Nancy

again sought to add Marcelle to her FEHB Self and Family Plan, as well as to the

available vision benefit plan (“FEDVIP”) and to her flexible spending account, during the

open enrollment period between November 10, 2008 and December 9, 2008.

84.

Initially, Nancy sought to enroll Marcelle through the PostalEASE

system through her home computer, and then through the PostalEASE Employee Kiosk

at her workplace on Friday, November 21, 2008.

85.

When Nancy attempted to add Marcelle as her spouse for health

insurance and identified Marcelle’s gender as “female,” the system returned a message

that said: “Your gender and the gender selected for your spouse cannot be the same.”

86.

When Nancy attempted to add Marcelle as her spouse for the vision

insurance plan and identified Marcelle’s gender as “female,” the system again returned a

message that said: “Your gender and the gender selected for your spouse cannot be the

same.”

87.

Although PostalEASE allowed Nancy to enter Marcelle on her list of

dependents, when Nancy attempted to “Finish Enrollment,” the system produced an error

message: “Unknown Tran Codes.”

88.

Nancy also received a message from the kiosk system that said: “The

system cannot process a 2809 form for you at this time – You must complete an FEHB

19

enrollment through PostalEASE before you can print a completed 2809 Enrollment

Form.”

89.

Despite the refusal of the PostalEASE system to accept her enrollment

request, Nancy persisted by phone and by mail to obtain assistance from her local Human

Resources officer in adding Marcelle to her health and vision benefit plans and flexible

spending account.

90.

Nancy received a response by letter dated December 8, 2008, from

Michelle Palardy, HR Generalist Principal, USPS – SENE District. Letter from Michelle

Palardy, Human Resources General Specialist, USPS—Southeast New England District,

to Nancy Gill (Dec. 8, 2008).

91.

The text of the December 8, 2008, letter stated in its entirety:

This is in response to your inquiry regarding adding your spouse to your health benefits during open season 2009.

After researching the situation, I have found information on the US Office of Personnel Management website (www.opm.gov) that states that same sex partners are not eligible as family members under enrollment in Federal Employees Health Benefits Programs, Federal Employees Dental and Vision Insurance Program, Federal Employees’ Group Life Insurance Program, Federal Flexible Spending Account Program, and Federal Long Term Care Insurance Program.

The Office of Personnel Management sites [sic] Public Law 104199 Defense of Marriage Act. It 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.”

I have attached a copy of the page from the OPM website that states this. I hope that this has been responsive to your concerns in this matter.

20

92.

The Office of Personnel Management (“OPM”) website material

attached to the December 8, 2008, letter indicates that it “can be found on the web at the

following url: http://opm.gov/insure/lifeevents/le4a.asp.”

93.

Nancy followed up by writing a letter to the United States Postal

Service HR Shared Services Center in Greensboro, North Carolina to confirm that there

were no further steps she could take to enroll Marcelle for spousal benefits. Letter from

Nancy Gill to Michelle Palardy, Human Resources General Specialist, USPS—Southeast

New England District and Open Enrollment Manager, Shared Services, USPS (Dec. 18,

2008).

94.

By letter dated January 2, 2009, the HR Shared Services Center wrote

to Nancy regarding Reference # H-2583279 and stated: “the information provided to you

by Michelle Palardy is correct.” Letter from USPS, Human Resources Shared Service

Center, Greensborough, N.C., to Nancy Gill (Jan. 2, 2009).

95.

As a result of the United States Postal Service’s application of DOMA,

1 U.S.C. § 7, Marcelle has been denied both health and vision insurance as well as all

other employment-related benefits available to the spouses of United States Postal

Service employees.

96.

As a result of the United States Postal Service’s application of DOMA,

1 U.S.C. § 7, Nancy has been prohibited from covering Marcelle under her federal

flexible spending account as well as all other employment-related benefits available to

United States Postal Service employees for the support of their spouses.

97.

As a result of this exclusion from benefits, Marcelle and Nancy have

suffered specific and concrete financial harms. Spousal health insurance and vision

21

coverage are valuable benefits of employment. Marcelle and Nancy have been forced to buy health insurance for Marcelle as if they were not married, to the financial detriment of Marcelle, Nancy, and their children. Nancy and Marcelle have also been denied, among other things, the financial benefits that accrue to a household from the use of a flexible spending account for the medical expenses of a spouse.

Plaintiffs Martin Koski and James Fitzgerald

98.

Plaintiff Martin Koski (“Martin”) is a retired employee of the Social

Security Administration.

99.

Martin and his spouse James Fitzgerald (“Jim”) have been in a

committed relationship for over 33 years.

100.

Jim currently works as a counselor’s aide at an alcohol treatment

center.

101.

Martin worked as a claims representative for the Social Security

Administration from 1968 until 1979 in Boston.

102.

In 1979, Martin and Jim decided to move to Florida together, and so

Martin left his job at the Social Security Administration.

103.

In Florida, Martin worked as a travel agent, while he and Jim together

took care of Martin’s father, who was dying of cancer. Martin’s father passed away in

1994, with Martin and Jim at his side.

104.

In 1995, Martin and Jim returned to Boston. Martin was welcomed

back to his prior position as a claims representative for the Social Security

Administration, where he worked until his retirement in 2005.

22

105.

As a former employee and qualified annuitant of the Social Security

Administration, Martin is enrolled in the FEHB.

106.

For some time prior to October 5, 2007, Martin was enrolled in FEHB

under a “Self-Only” plan, covering, as the name suggests, himself only.

107.

Pursuant to 5 U.S.C. § 8905, 5 C.F.R. § 890.306(g)(1) and the FEHB

handbook, an FEHB enrollee is allowed to change his enrollment from “Self Only” to

“Self and Family” beginning 31 days before and ending 60 days after a change in family

status, which includes a change in marital status.

108.

According to the FEHB Handbook, “Self and Family” enrollment is

described as follows:

Self and Family

A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.

FEHB Handbook, Enrollment, Types of Enrollment.

109.

According to 5 U.S.C. § 8901(5), “member of family” is defined, in

part, to “mean[] the spouse of an employee or annuitant and an unmarried child under 22

years of age . . . .”

110.

After more than 30 years together, Martin and Jim married on

September 10, 2007, in Bourne, Massachusetts, in strict and complete accordance with

Massachusetts law. They married because of their longstanding commitment to one

another and their belief that marriage would provide them with additional legal security.

23

111.

On October 5, 2007, within the 60-day period in which to request a

change in enrollment, Martin sent OPM a request to change his enrollment for health

benefits from “Self-Only” to “Self and Family” and included his Massachusetts marriage

certificate as proof of marriage.

112.

By letter dated January 15, 2008, Martin received a denial of his

request from the Retirement Benefits Branch of OPM. Letter from Tianna Butler,

Annuitant Insurance Specialist, Retirement Benefits Branch, OPM, to Martin A. Koski

(Jan. 15, 2008).

113.

OPM based its denial of Martin’s request for family health insurance

for Jim on DOMA, 1 U.S.C. § 7. In its January 15, 2008 letter, OPM stated:

Coverage under the FEHB Program is limited to certain family members. The FEHB Program is governed by Federal law. Title 5, United States Code, section 8901(5) defines family members as an employee’s or annuitant’s spouse and his or her unmarried dependent children under the age of 22.

Public Law 104-199, the Defense of Marriage Act, states, “In determining the meaning of any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or a wife.”

Based on the FEHB law and the Defense of Marriage Act, OPM has determined that James Fitzgerald is not a recognized qualified dependant and cannot be added to your existing enrollment in the FEHB Program. Therefore, your enrollment will remain as a self only enrollment.

114.

On January 25, 2008, Martin timely requested reconsideration of his

denial. Letter from Martin A. Koski to OPM, Retirement Operations Center, Boyers,

P.A. (Jan. 25, 2008).

24

115.

By letter dated July 1, 2008, OPM responded to Martin’s request for

reconsideration and affirmed its original decision to deny Martin’s request to change his

enrollment to “Self and Family” coverage. Letter from Antoinette Vanderhorst, Legal

Administrative Specialist, Disability, Reconsideration and Appeals Group, OPM, to

Martin A. Koski (July 1, 2008).

116.

In its July 1, 2008 denial of Martin’s request for reconsideration, OPM

again relied upon DOMA, 1 U.S.C. § 7:

Because your marriage to James Thomas Fitzgerald does not meet the definition of marriage in accordance with § 7 [DOMA, 1 U.S.C. § 7], we find that he does not qualify as a family member as specified under section 8901(5) of title 5, United States Code. Therefore, we must deny your request to change your FEHB self-only coverage to self and family coverage.

117.

On October 10, 2008, Martin sent a letter to OPM requesting a

survivor annuity benefit for his spouse, Jim, and included a copy of his marriage

certificate as proof of marriage. Letter from Martin A. Koski to OPM, Boyers, P.A. (Oct.

25, 2008).

118.

On November 13, 2008, Martin sent an e-mail to OPM requesting

information about the processing of his request for a survivor annuity benefit. E-mail

from Martin A. Koski to OPM (Nov. 13, 2008, 4:21:30 PM).

119.

On December 9, 2008, OPM responded to Martin’s e-mail informing

him that his request had been logged into the “Post-Retirement Section” in Boyers,

Pennsylvania on October 23, 2008, and was currently being processed. E-mail from

Bambi Bonaddio, Customer Service Specialist, Customer Services Group, OPM, to

Martin A. Koski (Dec. 9, 2008, 10:49 EST).

25

120.

By letter dated January 26, 2009, OPM denied Martin’s request for

survivor annuity benefits for Jim, stating that “We do not recognize same sex marriages.

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 and wife.” Letter from Susan Bonefeste, Legal Administrative Specialist,

Post Retirement Section, OPM, to Martin A. Koski (Jan. 26, 2009). The letter informed

Martin of the process for requesting reconsideration of OPM’s denial.

121.

On February 2, 2009, Martin timely requested reconsideration of

OPM’s denial of his request for survivor annuity benefits for Jim. Letter from Martin A.

Koski to OPM, Retirement Operations Center, Boyers, P.A. (Feb. 2, 2009).

122.

As a result of OPM’s application of DOMA, 1 U.S.C. § 7, Jim has

been denied health insurance and survivor annuity benefits available to the spouses of

federal retirees even though he is legally Martin’s spouse under Massachusetts law.

123.

As a result of this exclusion from benefits, Martin and Jim have

suffered specific and concrete financial harms to themselves and to their household. In

particular, Jim has severe asthma that must be controlled with multiple medications. Jim

has been forced, among other things, to purchase health insurance for himself with

coverage inferior to that of the federal employee health insurance benefit and at a cost

greater than the cost of the federal spousal health insurance coverage. His deductibles

and prescription medication co-payments are higher than they would be if he had access

to the FEHB insurance.

26

Plaintiff Dean Hara

124.

Plaintiff Dean Hara (“Dean”) is a financial advisor working as an

independent contractor with a financial services company.

125.

Dean is the widowed spouse of former United States Congressman

Gerry E. Studds (“Congressman Studds” or “Gerry”).

126.

Congressman Studds served in Congress, as a Representative from

Massachusetts, for 24 years from his first election in November 1972 until he did not

seek re-election in 1996 and his retirement in January 1997.

127.

Dean moved to Washington, D.C. in 1979 for school and then

employment. He and Gerry first met through mutual acquaintances in the early 1980s,

and they crossed paths often in their mutual neighborhood of Dupont Circle.

128.

In January 1991, Gerry and Dean began a dating relationship. Eight

months later, on Labor Day, Gerry proposed to Dean, asking him to accept and return a

commitment for life. Shortly thereafter, Dean accepted, and they were a committed

couple from that day in 1991 forward.

129.

Throughout Congressman Studds’s terms from 1991 through January

1997, Dean attended countless public, Congressional, and political events as the

Congressman’s recognized spouse.

130.

Dean became a member of the Democratic Spouses organization. He

continues to belong to that organization to this day.

131.

Dean received and carried the official Congressional Spouse Photo

Identification card listing him as the spouse of Congressman Studds, 10th MA, which

27

was issued by the Sergeant at Arms of the U.S. House of Representatives in January

1995.

132.

Upon Gerry’s retirement from federal employment, he and Dean

moved to Massachusetts, splitting time between Provincetown, Massachusetts, which was

in Gerry’s congressional district, and Boston, Massachusetts until 2002, when Boston

became their sole residence.

133.

After 13 years as a committed couple, on May 24, 2004, Gerry and

Dean were married in Boston, Massachusetts, in strict and complete accordance with

Massachusetts law. They married because the law finally allowed them to formalize the

vow of lifetime commitment they had made in 1991.

134.

On October 3, 2006, Gerry never returned home from his morning

walk with their dog, Bonnie, as he had suddenly lost consciousness and collapsed

because of a blood clot in his lung.

135.

Initially, Gerry’s condition improved in the hospital but then worsened

unexpectedly on Friday, October 13, 2006. He died in the early morning hours of

Saturday, October 14, 2006, at Boston Medical Center, leaving Dean as his surviving

spouse.

136.

At the time of Congressman Studds’s death, he was insured under the

Social Security program, and he and Dean had been living together in the same

household in Boston, Massachusetts.

137.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

28

death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death.

138.

Shortly after Gerry’s death, Dean applied for this Social Security

lump-sum death benefit.

139.

By letter dated November 14, 2006, the Social Security Administration

issued a Notice of Disapproved Claim to Dean, stating in pertinent part:

We have considered your application for Social Security benefits.

Since the Defense of Marriage Act prohibits SSA from finding that you and the insured were married for benefit purposes, you are not eligible for the lump sum death payment.

Other Social Security Benefits

You do not qualify for any other Social Security benefits based on the application you filed. In the future, if you think you may be entitled to benefits, you will need to apply again.

If You Disagree With The Decision

If you disagree with the decision, you have the right to appeal….

Letter from Judy Bernstein, Field Office Manager, Social Security Administration,

Boston Office, to Dean T. Hara (Nov. 14, 2006).

140.

As a result of the actions of the Social Security Administration and

solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Dean, Gerry’s

surviving legal spouse under Massachusetts law, has been denied the $255 death benefit

otherwise available to him under 42 U.S.C. § 402(i).

29

141.

In 2006, Dean made an explicit and formal request to SSA, and he

received an explicit and formal notice from the SSA denying him the right and

opportunity to receive a lump-sum death benefit following the death of his legal spouse.

142.

Based upon his 27 years of federal service, including 24 years as a

Congressman from Massachusetts, Congressman Studds was a participant in the Civil

Service Retirement System (“CSRS”).

143.

As part of his retirement planning, on May 17, 1993, Gerry designated

Dean as the beneficiary of any “lump sum benefit” payable upon his death under 5

U.S.C. § 8342 and filed that designation with OPM. Standard Form No. 2808 (May 17,

1993).

144.

On an immediate retirement application dated September 18, 1996,

Congressman Studds indicated that he was unmarried, and he elected an unreduced

annuity based on 27 years of total federal service. Standard Form No. 2801 (Sept. 18,

1996). Congressman Studds had no alternative, because no state had yet recognized his

and Dean’s right to marry.

145.

While Congressman Studds and Dean married in 2004, DOMA, 1

U.S.C. § 7, still prevented Congressman Studds from electing a retirement annuity that

provided a spousal annuity for Dean.

146.

Congressman Studds received retirement annuity benefits from his

January 2, 1997, retirement until his death. These benefits were a meaningful part of the

household income that he and Dean relied upon.

147.

On March 1, 2007, Dean applied for death benefits, both as Gerry’s

widower and as executor of Gerry’s estate, by submitting an “Application for Death

30

Benefits – Civil Service Retirement System” on Standard Form 2800 (Revised May

2000).

148.

OPM issued a check, dated March 29, 2007, to Dean T. Hara in the

amount of $4,141.38 and with the notation “78 CSF LUMPSUM.” This represented the

lump-sum benefit remaining in Congressman Studds’s retirement account.

149.

OPM’s communication to Dean that accompanied the March 29, 2007,

check included the statement: “You are entitled to a lump sum payment because of the

death of a former employee.”

150.

OPM’s communication to Dean that accompanied the March 29, 2007

check also included, under “Remarks,” the following:

WE REGRET TO INFORM YOU THAT YOUR LATE SPOUSE DID NOT ELECT SURVIVOR BENEFITS. THIS MONEY IS ALL YOU WILL RECEIVE FROM RETIREMENT.

151.

By letter dated May 30, 2007, OPM advised Dean that it was denying

his claim for a monthly survivor annuity. For its reasons, OPM’s letter states, in its

entirety: “Our records show that your spouse did not notify our office of your marriage

and no election was made to provide a survivor annuity for you.” Letter from Brenda

Hughes, Legal Administrative Specialist, Retirement Operations Center, OPM, to Dean

T. Hara (May 30, 2007).

152.

Dean requested reconsideration of OPM’s decision by letter dated June

28, 2007. Letter from Dean T. Hara to OPM Retirement Operations Center (June 28,

2007).

153.

By letter dated October 24, 2007, OPM denied Dean’s request for

reconsideration, reiterating its position that no benefits were available to Dean because

31

Congressman Studds had not elected a survivor annuity for Dean. Letter from Joseph E.

Miller, Jr., Legal Administrative Specialist, OPM, to Dean T. Hara (Oct. 24, 2007).

154.

Dean filed a Notice of Appeal to the Merit Systems Protection Board

(“MSPB”) by letter dated November 27, 2007. Letter from Dean T. Hara to Regional

Director, Northeastern Regional Office, MSPB, Philadelphia, P.A. (Nov. 27, 2007).

155.

On February 26, 2008, OPM rescinded its final decision of October 24,

2007, indicating that a new reconsideration decision would be issued in the future. As a

result, Dean’s original MSPB appeal was dismissed without prejudice.

156.

By letter dated June 24, 2008, OPM issued a new reconsideration

decision and again reiterated its denial of a survivor annuity to Dean while asserting two

grounds for denial:

You have not established that Representative Studds elected a survivor annuity benefit for you.

A same-sex marriage in any jurisdiction cannot be recognized for benefit entitlement purposes under any Federal statute administered by OPM. Therefore, even if Representative Studds had elected a survivor benefit for you, under 1 U.S.C. §7, we could not approve your application for a survivor annuity.

Letter from Joseph E. Miller, Jr., Legal Administrative Specialist, OPM, to Dean T.

Hara (June 24, 2008).

157.

Dean timely re-filed an appeal to the MSPB based upon OPM’s new

reconsideration decision.

158.

Following a one-day hearing in October 2008, Chief Administrative

Judge William L. Boulden issued a decision on Dean’s appeal on December 17, 2008.

Dean T. Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-

08-0099-I-2.

32

159.

Judge Boulden’s decision determined that Dean was not legally

eligible for a federal spousal survivor annuity for the sole reason that, by virtue of

DOMA, 1 U.S.C.§ 7, Dean and Gerry did not have a “marriage” and Dean was not a

“spouse” for purposes of the relevant statutes governing federal spousal survivor

annuities.

160.

Judge Boulden also determined that it was beyond the purview of the

MSPB to determine the constitutionality of 1 U.S.C. § 7.

161.

Judge Boulden also determined that Congressman Studds was not

subject to a two-year election requirement for naming Dean as a survivor annuitant

because “pursuant to DOMA, [Dean] was not ‘married’ to Congressman Studds and they

were not ‘spouses.’”

162.

Judge Boulden also found that Congressman Studds intended for Dean

to have the benefit of a spousal survivor annuity if that was legally possible. As a result,

even if an election by Congressman Studds were required, Judge Boulden determined

that the election would be considered to have been timely made and that OPM would be

estopped from relying on any asserted failure of election.

163.

Judge Boulden’s Initial Decision of December 17, 2008, became final

on January 21, 2009.

164.

As a result of the actions of OPM, which were based solely on the

existence and operation of DOMA, 1 U.S.C. § 7, Dean has been denied a spousal

survivor annuity available to the surviving spouses of eligible federal employees within

the CSRS system who, like Congressman Studds, intended to create such a spousal

annuity for their spouses.

33

165.

As a result of this exclusion from the spousal survivor annuity, Dean

has suffered substantial ongoing financial harm.

166.

Because the MSPB record demonstrated that Congressman Studds

intended to provide Dean with all the federal employment-related benefits available to a

spouse, Dean applied to OPM for federal health insurance benefits available to a

surviving spouse by Express Mail letter dated January 20, 2009. Letter from Dean T.

Hara to Retirement Operations Center, OPM (Jan. 20, 2009).

167.

That letter dated January 20, 2009, was delivered to the OPM

Retirement Operations Center on January 21, 2009.

168.

Dean presented to OPM his claim for federal health insurance benefits

as the surviving spouse of Congressman Studds, who intended to establish the availability

of such insurance benefit for Dean.

169.

Based upon Dean’s prior interactions with OPM, as well as the

interactions of others with OPM, including plaintiff Nancy Gill and Martin Koski, it is

clear that OPM will deny Dean’s request for health insurance coverage and cite DOMA,

1 U.S.C. § 7, as OPM has done to date both privately and publicly in a variety of settings.

Plaintiffs Mary Ritchie and Kathleen Bush

170.

Plaintiff Mary Ritchie (“Mary”) is a State Police Sergeant with the

Commonwealth of Massachusetts. Mary has been with the State Police for more than 20

years, and she now specializes in supervising major crime scenes and crime scene

forensics.

34

171.

Plaintiff Kathleen Bush (“Kathy”) is a homemaker and an active

volunteer in the local school system.

172.

Mary and Kathy met through a mutual friend, at a Christmas party in

1989. They have been a committed couple for 19 years, since 1990.

173.

Mary and Kathy have two school-age children. Their sons are 7 and

10 years old, and both have hyphenated last names using their parents’ surnames.

174.

When their first son was born, in 1999, Mary took a parenting leave to

care for him. Later, Mary and Kathy reached a joint decision that Kathy would become a

stay-at-home parent. Prior to that time, Kathy had been successfully employed in sales

and marketing for an established medical journal.

175.

After 14 years together as a committed couple, Mary and Kathy were

married at their home in Framingham on May 22, 2004 in strict and complete accordance

with Massachusetts law. They married because “marriage” is what best described their

family to each of them. Mary also expected to protect their family through employment

benefits that their marriage would make available.

176.

Mary, Kathy and their two sons live together in a home that Mary and

Kathy jointly own in Framingham. Both their sons attend the local public schools.

Kathy serves on the Executive Board of the Parent Teacher Organization.

177.

Kathy and Mary were born and raised in Framingham and Boston,

respectively, and their family is very close with each other’s large extended families.

178.

As a legally married couple, Mary and Kathy file their state income

tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They

have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.

35

179.

Despite their legal marital status, and the requirement that they file

their state income tax returns as Married with the Massachusetts Department of Revenue,

they have not filed their annual federal income tax returns as Married Filing Jointly

because of the federal government’s non-recognition of their marriage pursuant to

DOMA, 1 U.S.C. § 7.

180.

Each year since their marriage in 2004, Mary has filed and paid federal

taxes using the “Head of Household” filing status because of DOMA, 1 U.S.C. § 7.

Kathy has had no income and thus has not been required to file any federal income tax

return.

181.

Each year since their marriage in 2004, Mary and Kathy have paid

substantially more in federal income taxes as a result of their inability to file as Married

Filing Jointly.

182.

Additionally, for the tax year 2008, Mary sought to contribute money

toward a spousal Individual Retirement Account (“IRA”) for the benefit of Kathy, just as

any working spouse can do for a spouse who does not earn income. Due to their inability

to file federal income tax returns as Married Filing Jointly, Mary cannot take the

allowable tax deduction for her contribution to Kathy’s IRA account, even though other

working spouses can take the same deduction.

183.

For the tax year 2004, Mary and Kathy paid $1,054 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

36

184.

For the tax year 2005, Mary and Kathy paid $2,703 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

185.

For the tax year 2006, Mary and Kathy paid $4,390 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

186.

For the tax year 2007, Mary and Kathy paid $ 6,371 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

187.

Additionally, Mary is and has been unable to contribute on a tax-

advantaged basis to Kathy’s IRA as is ordinarily permitted for spouses under Section

219(c) of the Internal Revenue Code, as amended (“I.R.C.”).

188.

Having timely paid all their federal income taxes in full, Mary and

Kathy later submitted amended federal income tax returns, on IRS Form 1040X,

changing their filing status from Mary filing alone as Head of Household to Mary and

Kathy filing together as Married Filing Jointly.

189.

On April 13, 2008, Mary and Kathy submitted an amended federal

income tax return to the IRS on IRS Form 1040X for the tax year 2004. The 2004

amended federal income tax return included a claim for refund in the amount of $1,054.

190.

Mary and Kathy attached to the IRS Form 1040X Amended Return the

Form 8275, Disclosure Statement and the 8275-R, Regulation Disclosure Statement

explaining their changes to the originally filed federal income tax return. In its entirety,

the Attachment states:

37

Attachment To Form 1040X, Part II, Explanation of Changes Form 8275, Disclosure Statement Form 8275-R, Regulation Disclosure Statement 2004 Tax Year

REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE “DEFENSE OF MARRIAGE ACT”

The taxpayer, Mary E. Ritchie, ID #[###-##-####], a spouse in a same-sex couple, was married under the laws of the Commonwealth of Massachusetts as of December 31, 2004. For the tax year of this amended return, the taxpayer filed a joint Massachusetts income tax return with her spouse as a married couple. However, in accordance with the federal law known as the Defense of Marriage Act (“DOMA”), the taxpayer filed an individual, federal income tax return as though she was unmarried. The taxpayer believes that being required to file as though she is unmarried amounts to unequal treatment compared to other married persons in Massachusetts. The taxpayer believes that her marriage, which is valid under Massachusetts law, should be respected for federal tax purposes, just like the Massachusetts marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that she should be allowed to file this amended joint return with her spouse and receive the refund shown herein.

In particular, if the taxpayer were able to file as married filing jointly, such a filing status would affect the following adjustments:

The federal tax as decreased from $5,331 to $4,277. The taxpayer previously paid $5,331 in federal income tax in her original returnfor this taxable year. As a result of these adjustments, the amount of overpayment is $1,054.

191.

With each successive amended federal income tax return and refund

claim filed, Mary and Kathy included the same Explanation of Changes and Disclosure

Statement Attachment described in Paragraph 190, except that the tax year, amount of

federal income tax paid and amount of refund claimed were adjusted to reflect the proper

tax year.

192.

Correspondence from the IRS confirms that the 2004 amended federal

income tax return and accompanying refund claim were timely received on April 15,

38

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 17, 2008).

193.

In a reply dated July 17, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2004. Id. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[t]he Federal Government does not recognize same sex marriages and

differs with Massachusetts on this point.” Id.

194.

On April 13, 2008, Mary and Kathy submitted to the IRS an amended

federal income tax return on IRS Form 1040X for the tax year 2005. The amended

federal income tax return included a claim for refund in the amount of $2,703.

195.

Correspondence from the IRS confirms that the 2005 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 18, 2008).

196.

In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2005. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[t]he Federal Government does not recognize same sex marriages.” Id.

197.

On April 13, 2008, Mary and Kathy submitted to the IRS an amended

federal income tax return on IRS Form 1040X for the tax year 2006. The amended

federal income tax return included a claim for refund in the amount of $4,390.

198.

Correspondence from the IRS confirms that the 2006 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 18, 2008).

39

199.

In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[c]urrent federal law does not recognize same sex marriage even if

legally constituted by a sovereign state.” Id.

200.

Each disallowance that Mary and Kathy received from the IRS notified

them of their right to file suit in the United States District Court within two years from

the date of the disallowance letters.

201.

As a result of these IRS disallowances, and solely because of the

existence and operation of DOMA, 1 U.S.C. § 7, Mary and Kathy have suffered specific

and concrete financial harms to themselves and to their household. Specifically, the

2004, 2005 and 2006 disallowances have forced Mary and Kathy to pay $8,147 more in

federal income taxes than a similarly situated different-sex married couple would have

paid for those same tax years.

202.

The additional money that Mary and Kathy had to pay in federal

income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings or toward

supporting their two young sons.

203.

Moreover, the specific and concrete financial harms to Mary and

Kathy’s household continue to grow with each additional year that DOMA, 1 U.S.C. § 7,

operates to bar the IRS from recognizing them as a married couple entitled to the Married

Filing Jointly status.

40

Plaintiffs Melba Abreu and Beatrice Hernandez

204.

Plaintiff Melba Abreu (“Melba”) is the chief financial officer for a

non-profit organization located in Boston, Massachusetts.

205.

Plaintiff Beatrice Hernandez (“Beatrice”) is in the process of founding

her own web design practice. The company is presently in its initial stages and generates

no income. Beatrice also is a writer and is currently in the process of writing two books.

206.

Melba and Beatrice met in Miami in May 1987. They were both living

and working in Miami at the time. Melba and Beatrice’s connection was immediate, and,

consequently, they became a committed couple after a short period of time.

207.

Shortly after they began their relationship, Melba and Beatrice moved

together to Brooklyn, New York because Beatrice was accepted to a degree program at

New York University. In November 1987, the day they moved into their first apartment

in Brooklyn, Melba and Beatrice celebrated the beginning of their lives together by

sharing a bottle of wine while unpacking a box of new dishes for their new home. In the

simplicity of that day they knew that their commitment was their bond, and that together

they would bear witness to each other’s lives. They view this as the beginning of their

marriage.

208.

Melba and Beatrice have been a devoted couple for more than 21

years, since 1987.

209.

On May 20, 2004, after 17 years as a committed couple, Melba and

Beatrice were married in strict and complete accordance with Massachusetts law because

they finally had the opportunity to affirm under law what they had long ago declared in

their hearts.

41

210.

Melba and Beatrice live in Boston, Massachusetts. They dream of the

day they can own a home and build a business together

211.

As a legally married couple, Melba and Beatrice file their state income

tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They

have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.

212.

Despite their legal marital status, and the requirement that they file

their state income tax returns as Married with the Massachusetts Department of Revenue,

they have not filed their annual federal income tax returns as Married Filing Jointly

because of the federal government’s non-recognition of their marriage pursuant to

DOMA, 1 U.S.C. § 7.

213.

Each year since their marriage in 2004, Melba has filed and paid

federal income tax returns using the Single filing status because of DOMA, 1 U.S.C. § 7.

Beatrice has had no income and thus has not been required to file any federal income tax

return.

214.

Each year since their marriage in 2004, Melba and Beatrice have paid

substantially more in federal income tax as a result of their inability to file as Married

Filing Jointly.

215.

In the tax year 2004, Melba and Beatrice paid $4,687 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

216.

For the tax year 2005, Melba and Beatrice paid $3,785 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

42

217.

For the tax year 2006, Melba and Beatrice paid $5,546 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

218.

For the tax year 2007, Melba and Beatrice paid $5,697 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

219.

Having timely paid all their federal income taxes in full, Melba and

Beatrice later submitted amended federal tax returns, on IRS Form 1040X, changing their

filing status from Melba filing alone as Single to Melba and Beatrice filing together as

Married Filing Jointly.

220.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2004. The 2004

amended federal income tax return included a claim for refund in the amount of $4,687.

221.

With their 2004 amended federal income tax return and refund claim,

Melba and Beatrice attached the same Form 8275, Disclosure Statement and 8275-R,

Regulation Disclosure Statement described in Paragraph 190, in order to explain their

changes to the originally filed federal income tax return. Melba’s and Beatrice’s

Explanation of Changes, Form 8275 Disclosure Statement and Form 8275-R, Regulation

Disclosure Statement differs from that described in Paragraph 190 only insofar as it

identifies different taxpayers, a different amount of federal income tax paid, and a

different amount of refund claimed.

222.

With each successive amended federal income tax return and refund

claim filed, Melba and Beatrice included the same Explanation of Changes and

43

Disclosure Statement Attachment described in Paragraph 190 and Paragraph 221, except

that the tax year, amount of federal income tax paid, and amount of refund claimed were

adjusted to reflect the proper tax year.

223.

Correspondence from the IRS confirms that the 2004 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008.

224.

In a reply dated June 20, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2004. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.”

Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, M.A., to

Melba Abreu (June 20, 2008).

225.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2005. The

amended federal income tax return included a claim for refund in the amount of $3,785.

226.

Correspondence from the IRS confirms that the 2005 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Melba Abreu (June 30, 2008).

227.

In a reply dated June 30, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2005. Id. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.”

Id.

44

228.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2006. The

amended federal income tax return included a claim for refund in the amount of $ 5,546.

229.

Correspondence from the IRS confirms that the 2006 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Melba C. Abreu (June 30, 2008).

230.

In a reply dated June 30, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “same sex marriages are not recognized at the Federal level.”

Id.

231.

Each disallowance letter that Melba and Beatrice received from the

IRS notified them of their right to file suit on their claims to recover federal income tax in

the United States District Court within two years from the date of the disallowance

letters.

232.

As a result of these IRS disallowances, and solely because of the

existence and operation of DOMA, 1 U.S.C. § 7, Melba and Beatrice have suffered

specific and concrete financial harms to themselves and to their household. Specifically,

the 2004, 2005 and 2006 disallowances have forced Melba and Beatrice to pay $14,018

more in federal income taxes than a similarly situated married couple would have paid for

those same tax years.

45

233.

The additional money Melba and Beatrice had to pay in federal

income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings for Melba

and Beatrice’s future or provided for the start-up expenses of Beatrice’s practice.

234.

Moreover, the specific and concrete financial harms to Melba and

Beatrice’s household continue to grow with each additional year that DOMA,

1 U.S.C. § 7, bars the IRS from recognizing them as a married couple entitled to the

Married Filing Jointly status.

Plaintiffs Bette Jo Green and Jo Ann Whitehead

235.

Plaintiff Bette Jo Green (“Bette Jo”) recently retired from a 35-year

career as a Labor and Delivery Nurse at a large, Boston-area hospital. She is almost 67

years old.

236.

Plaintiff Jo Ann Whitehead (“Jo Ann”) is a Community Garden

Educator with a non-profit group in the Boston area. Jo Ann has worked in urban

gardening for more than 10 years and previously worked in public school settings. Jo

Ann is 67 years old.

237.

Jo Ann and Bette Jo met in 1960 and were friends at Manchester

College in Indiana. Jo Ann and Bette Jo graduated from Manchester College in 1964 and

were roommates during their senior year.

238.

After remaining in contact for more than 15 years, a time during which

Bette Jo lived in Massachusetts and Jo Ann remained in Indiana, the two women visited

each other on several occasions and then began a romantic relationship in 1981.

46

239.

For more than 27 years, Bette Jo and Jo Ann have been in a committed

relationship and have lived together in Jamaica Plain, Massachusetts, where they are

deeply involved in the community.

240.

Jo Ann and Bette Jo both volunteer in their community and are active

in their Neighborhood Watch. Bette Jo takes their elderly neighbors on shopping trips,

and both Bette Jo and Jo Ann help at programs for local children and youth, including

weekly summer barbecues.

241.

Jo Ann and Bette Jo are both cancer survivors. Jo Ann survived a

difficult fight with bone cancer, but she had to reduce her working hours because of

ongoing fatigue. Bette Jo suffered from both uterine and cervical cancer. Both women

have been cancer free for many years but remain conscious of the risk of recurrence.

242.

Jo Ann and Bette Jo have many supportive family members, primarily

in the Midwest, where they make annual visits to spend time with their families.

243.

After 23 years as a committed couple, Bette Jo and Jo Ann married in

the garden at their home in Jamaica Plain, Massachusetts on June 7, 2004, in strict and

complete accordance with Massachusetts law. Friends and neighbors attended their

wedding.

244.

In February 2008, when she was 66 years old, Jo Ann applied for and

began receiving Social Security retirement benefits based on her own Social Security

earnings record. Jo Ann is currently 67 years old and continues to receive Social Security

retirement benefits based on her own earnings record.

47

245.

In February 2008, at the age of 65 years and 10 months and in

anticipation of her retirement from nursing, Bette Jo applied for and began receiving

Social Security retirement benefits on her own earnings record.

246.

Social Security offers the option of receiving benefits based on the

earnings record of a spouse. This option is described by the Social Security

Administration (“SSA”) on its website, in relevant part, at

http://www.ssa.gov/pubs/10035.html,:

Spouse’s benefits
A spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit. If you are eligible for both your own retirement benefits and for benefits as a spouse, we always pay your own benefits first. If your benefits as a spouse are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit.
If you have reached your full retirement age, and are eligible for a spouse’s or ex-spouse’s benefit and your own retirement benefit, you may choose to receive only spouse’s benefits and continue accruing delayed retirement credits on your own Social Security record. You may then file for benefits at a later date and receive a higher monthly benefit based on the effect of delayed retirement credits.

247.

On March 26, 2008, Jo Ann appeared in person at the Boston regional

office of the SSA and applied for the Social Security spousal benefit based on Bette Jo’s

earnings record, because Jo Ann recognized that she would receive a higher monthly

benefit amount if she drew on the spousal benefit rather than solely on her own earnings

record.

248.

If the SSA had permitted Jo Ann to receive spousal benefits based on

Bette Jo’s earnings record, Jo Ann could have delayed her retirement age for purposes of

Social Security. A later Social Security retirement age could increase Jo Ann’s own

retirement benefits.

48

249.

In a letter dated April 4, 2008, the SSA denied Jo Ann’s claim for

spousal benefits. Letter from Judy Bernstein, Field Officer Manager, SSA, Boston, M.A.,

to Jo A Whitehead (Apr. 4, 2008). The letter stated that: “Since the Defense of Marriage

Act prohibits SSA from finding that your [sic] and the insured were married for benefit

purposes, you are not eligible for Spouse’s Benefits.” Id.

250.

Jo Ann filed a timely Request for Reconsideration on May 19, 2008.

Form SSA-561-U2 (9-2007) ef (9-2007) (May, 19, 2008). In her Request, she wrote: “I

am appealing because I should receive the spousal retirement benefit. I have been

married under Massachusetts law since June 7, 2004. Since DOMA [1 U.S.C. § 7] blocks

recognition of my marital status/marriage and it treats me differently from other married

people in Massachusetts, I believe DOMA [1 U.S.C. § 7] is unconstitutional.” Id.

251.

The SSA did not respond to Jo Ann’s Request for Reconsideration

until January 17, 2009, Letter from Phyllis M. Smith, Assistant Regional Commissioner,

Great Lakes Processing Center Operations, SSA, Chicago, I.L., to Jo Ann Whitehead

(Jan. 17, 2009), and then did so only after Jo Ann sought the assistance of one of her

Senators. Letter from Edward M. Kennedy, United States Senator, Boston, M.A., to Jo

Ann Whitehead (Nov. 10, 2008). Eight months elapsed between when Jo Ann filed her

Request for Reconsideration and when the SSA finally responded with a denial.

252.

In the SSA’s written denial of Jo Ann’s Request for Reconsideration

dated January 17, 2009, it stated that it looks to the laws of the applicant’s state of

residence in determining marital status. Letter from Phyllis M. Smith to Jo Ann

Whitehead (Jan. 17, 2009). It further noted that “[o]n May 17, 2004, Massachusetts

became the first state to legalize same-sex marriages.” Id.

49

253.

However, the SSA’s denial letter went on to cite DOMA, 1 U.S.C. § 7,

for the proposition that marriage for federal purposes means only a legal union between

one man and one woman as husband and wife and stated that therefore: “for all benefit

purposes, SSA does not recognize such individual as the spouse of the [number holder.]”

Id.

254.

On February 2, 2009, Jo Ann went to her local SSA office in Roxbury,

Massachusetts and requested, in writing, the Expedited Appeals Process (“EAP”). Letter

from Jo Ann Whitehead to SSA, Roxbury, M.A., (Feb. 2, 2009). She has yet to receive a

response to her EAP request.

255.

Jo Ann made an explicit and formal request for benefits in 2008, and

in 2009, Jo Ann received explicit and formal notice from SSA denying her request.

256.

Jo Ann and Bette Jo have suffered specific and concrete financial harm

as a result of the denial of spousal benefits. In addition to the harm from the denial of the

spousal benefit, Jo Ann and Bette Jo have an ongoing concern, reasonable in light of their

health travails, about Jo Ann’s lack of access to the Social Security survivor benefit in the

event that Bette Jo predeceases her.

257.

As Bette Jo and Jo Ann plan and budget yearly expenses, there is the

concern that if Bette Jo died before Jo Ann, Jo Ann would have no safety net and would

not be able to meet the costs of living, including maintaining her home, as well as paying

for food and non-insured medical care. Without the survivor benefit, Jo Ann would

likely live in enforced isolation from their family and friends in the Midwest, as the cost

of traveling would be prohibitive.

50

Plaintiff Randell Lewis-Kendell

258.

Plaintiff Randell Lewis-Kendell, (“Randy”) is the surviving spouse of

a 30-year committed relationship with Robert Lewis-Kendell (“Robert”).

259.

Robert died in November 2007, at age 72, after a long battle with

recurrent colon cancer.

260.

Randy and Robert began their relationship in 1977 while both were

living in Connecticut. Their relationship was rooted in deep love and close friendship.

261.

Their families and community welcomed Randy and Robert’s

relationship from early on. Robert’s now adult children have always treated Randy as

their stepfather, and now their children consider Randy to be their grandpa.

262.

Robert grew up in a Boston suburb and was eager to return to

Massachusetts when the opportunity arose. In 1985, Randy and Robert moved together

to Massachusetts, and Robert began working in fundraising and development. Randy

worked in retail and became a manager at several stores.

263.

In 1993, Randy and Robert realized their mutual dream of relocating to

a small town on Cape Cod when they purchased a gift shop in Harwich Port,

Massachusetts.

264.

Randy and Robert quickly became an integral part of the local

business community and also became active in their local church.

265.

Initially, Randy and Robert rented a house in West Dennis,

Massachusetts, while they were building up their gift shop business. They reinvested all

the money they earned in the business and so, initially, they could not afford to purchase

their own home in Harwich Port.

51

266.

In 2006, however, Robert and Randy purchased a small condominium

together in Harwich Port. Randy continues to live in that condominium.

267.

In 2002, Robert was diagnosed with colon cancer. Initially, he was

treated with surgery and monitoring but then, in 2004, there was a recurrence, and

Robert’s prognosis became far more serious. In 2004, Robert began chemotherapy

treatments.

268.

Randy took Robert to every medical appointment, including

appointments in Boston. Randy sat with Robert through every treatment and

administered needed medications at home. When necessary, Randy would close the gift

shop to care for Robert. As Robert’s condition worsened, Randy stayed with him at all

times and took care of him.

269.

Randy and Robert married on May 21, 2004, in Harwich Port,

Massachusetts, in strict and complete accordance with Massachusetts law. They married

to solidify their lifelong commitment. At the time of their marriage, they were both well

aware of the serious nature of Robert’s illness.

270.

After his long battle with colon cancer, Robert died on November 14,

2007, with Randy at his side.

271.

At the time of his death, Robert was receiving Social Security

retirement benefits in the amount of $1,161 per month based on his lifelong earnings

record. This benefit was a critical source of support for the couple.

272.

Since Robert passed away, Randy has lived in difficult economic

circumstances. The challenging economy and reduced tourism have negatively affected

sales at the gift shop. He has fallen behind on some bills.

52

273.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death.

274.

When Randy made Robert’s funeral arrangements, the funeral director

informed Randy about the $255 lump-sum death benefit and mentioned that it could help

with funeral expenses. He made an application on Randy’s behalf, as the funeral home

does for other clients.

275.

On December 21, 2007, Randy again applied for the lump-sum death

benefit by appearing in person at the SSA office in Hyannis, Massachusetts and

submitting a written application. Form SSA-8-F4 (5-2003) EF (02-2006).

276.

The SSA denied Randy’s claim by letter dated April 16, 2008. Letter

from G.A. Sorrow, District Manager, SSA, Worcester, M.A., to Randell Lewis-Kendell

(Apr. 16, 2008).

277.

This letter stated that: “Since the Defense of Marriage Act prohibits

SSA from finding that you and the insured were married for benefit purposes, you are not

eligible for the lump sum death payment.” Id., at ¶ 2.

278.

Randy timely filed a Request for Reconsideration on May 30, 2008.

Form SSA-561-U2 (9-2007) ef (9-2007) (May 30, 2008).

279.

Randy’s Request for Reconsideration stated, “I am appealing because I

should receive the lump-sum death benefit. I was married under Massachusetts law since

53

May 21, 2004. My spouse, Robert Lewis-Kendell, died on November 14, 2007. Since

DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage and it treats me

differently from other married people in Massachusetts, I believe DOMA [1 U.S.C. § 7]

is unconstitutional.” Id.

280.

Randy did not receive any response to his Request for Reconsideration

for several months. On October 23, 2008, nearly five months after Randy had made his

Request for Reconsideration, he even visited the Hyannis office of the SSA to try to get a

response. They told him that his request for the lump-sum benefit was in processing and

out of the control of the local office.

281.

Finally, in a letter dated November 19, 2008, the SSA denied Randy’s

Request for Reconsideration. Letter from Anne Jacobosky, Assistant Regional

Commissioner, Processing Center Operations, SSA, Northeast Program Service Center,

Jamaica, N.Y., to Randell Lewis-Kendell (Nov. 19, 2008).

282.

In its letter, the SSA wrote, “You are not entitled to benefits because

We [sic] cannot consider you to have been married to Robert A. Lewis-Kendell[.]” Id., at

4.

283.

In an explanation of its decision, the SSA cited DOMA, 1 U.S.C. § 7,

for the statement that, under federal law, “a marriage is the legal union of a man and a

woman as husband and wife, and a spouse is a husband or wife of the opposite sex.” Id.,

at 5.

284.

On December 31, 2008, Randy went to his local SSA office in

Hyannis, Massachusetts and requested, in writing, the EAP. Letter from Randell Lewis-

54

Kendell to SSA, Hyannis, M.A. (Dec. 31, 2008). He has yet to receive a response to his

EAP request.

285.

In 2007 and 2008, Randy made explicit and formal requests for the

lump-sum death benefit. In 2008, Randy received explicit and formal notice from SSA

that his claim for that benefit was denied.

286.

Because Randy has been denied Social Security benefits that similarly

situated people who have survived a spouse of the opposite sex routinely receive, Randy

has suffered specific and concrete financial harm. Randy applied for this $255 death

benefit and was denied. Additionally, Randy intends to apply for the Social Security

widower/survivor benefit when he turns 60 and becomes age-eligible. Randy fears for

his financial security in his later years if he does not receive the widower/survivor

benefit.

Plaintiff Herbert Burtis

287.

Plaintiff Herbert Burtis (“Herb”) met John Ferris (“John”) in the late

1940s while both attended Michigan State University. The two men were brought

together by their mutual interest in classical music and had long careers as musicians.

288.

The couple moved to New York City after John was accepted into a

graduate program there. Herb transferred to Columbia University, where he worked part-

time as the associate choirmaster while pursuing his own graduate studies. John worked

as the choirmaster and organist at a church in New Jersey.

289.

In 1958, John left New York to conduct the Harvard University choir,

a position he held for 32 years, and to teach conducting at several schools. When John

55

took the job at Harvard, Herb assumed John’s former position at the church in New

Jersey.

290.

The two men continued their loving relationship despite the distance

between them. In 1961, Herb and John purchased a home in Sandisfield, Massachusetts,

where they could be together when they did not have work responsibilities.

291.

In 1979, Herb left his church position in New Jersey and moved to

Massachusetts so that he and John could begin living together full time. During this time,

Herb gave private music lessons to students locally and at studios he maintained in New

York City and in New Jersey.

292.

In 1990, John retired from Harvard University and began to collect

Social Security benefits.

293.

For many years thereafter, both men were deeply involved in teaching

music. During this time, Herb continued to provide private music lessons to students,

including at his studios in New York City and New Jersey.

294.

Herb and John were married by a justice of the peace at their home in

Sandisfield, Massachusetts, on May 23, 2004, in strict and complete accordance with

Massachusetts law. After 55 years together, they were already a family, but they hoped

that marriage would increase their legal protections.

295.

At the time they married, John’s longstanding struggle with

Parkinson’s disease had intensified, and his health declined markedly over the next few

years due to Parkinson’s and other medical problems.

296.

Herb was the principal care-provider for John. He arranged for

medical treatments and dealt with the many emergencies and other issues that arose as

56

John’s condition worsened. They both preferred that John be at home, and Herb labored

mightily to make that possible, although there were times when John needed to be

hospitalized or to convalesce in a rehabilitation facility.

297.

John had a stroke at the home he shared with Herb on July 3, 2008.

298.

John died on August 1, 2008 at the Great Barrington Nursing and

Rehabilitation Center in Great Barrington, Massachusetts. At the time of his death, he

and Herb had been in a relationship for 60 years and had been married for more than four.

299.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death. John was insured by the Social Security program when he died

because he had contributed to the program while he worked.

300.

Under 42 U.S.C. § 402(f), widowers are entitled to insurance benefits

equal to the primary insurance amount earned by their deceased spouses.

301.

On October 20, 2008, Herb went to the Pittsfield, Massachusetts office

of the SSA to file an application for the lump-sum death benefit and the Social Security

survivor’s benefit based on John’s earnings record. Herb went to the SSA because he

recognized that he would receive a higher monthly benefit amount if he drew on the

survivor benefit rather than solely on his own earnings record.

57

302.

A clerk of the SSA, Mrs. Rogers, refused to accept Herb’s application.

Mrs. Rogers informed Herb that the Social Security administration does not recognize

marriages between people of the same sex.

303.

On November 6, 2008, Erik Hawley of the SSA contacted Herb to

follow up on his request for Social Security benefits.

304.

Mr. Hawley informed Herb that Social Security would not process

Herb’s application, and that in any case it would be denied.

305.

By letter dated November 6, 2008, the SSA informed Herb that his

claim was denied. The letter stated:

An individual whose claim for benefits is based on a State recognized same-sex marriage or having the same status as spouse for State inheritance purposes cannot meet the statutory gender-based definition of husband, wife, widow, widower of the NH, including one who is divorced. Under the Defense of Marriage Act, 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. Therefore, for benefit purposes, SSA does not recognize such individual as the spouse of the NH.

Letter from Jaime Nieves, District Manager, SSA, Pittsfield, M.A., to Herbert Burtis (Nov. 6, 2008).

306.

Herb timely filed a Request for Reconsideration by mail in December,

2008. Form SSA-561-U2 (9-2007) ef (7-2008). Herb’s request stated: “I am appealing

because I should receive the death benefit and widower’s benefit. I was married under

Massachusetts law since May 23, 2004. My spouse, John Ferris, died on August 1, 2008.

Since DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage, and it

treats me differently from other married people in Massachusetts, I believe DOMA [1

U.S.C. § 7] is unconstitutional.” Id.

58

307.

By letter dated January 20, 2009, the SSA informed Herb that its letter

“supplements our prior response of November 6, 2008” and advised him that he could

appeal if he believed that “this revised and reconsidered determination is not correct.”

Letter from P.M. Smith, Assistant Regional Commissioner, Processing Center

Operations, SSA. Great Lakes Program Service Center, Chicago, I.L., to Herbert Burtis

(Jan. 20, 2009).

308.

On February 9, 2009, Herb requested the EAP for his claim for the

lump-sum death benefit and survivor benefit in response to the SSA’s January 20, 2009

letter. Letter from Herbert Burtis to SSA, Pittsfield, M.A. (Feb. 9. 2009). He has not

received a response to his EAP request.

309.

In 2008 and 2009, Herb made explicit and formal requests for benefits

to SSA and received explicit and formal denials.

310.

Because the SSA does not recognize Herb’s marriage, Herb has been

denied the Social Security death benefit and the Social Security survivor’s benefit and

thus has suffered specific and concrete financial harm.

Plaintiffs Keith Toney and Albert Toney III

311.

Plaintiffs Keith Toney (“Keith”) and Albert Toney III (“Al”) met in

1998 and have been in a committed relationship since 1999.

312.

Al is a retired and disabled police officer and currently serves as the

President of AK Consulting Services Inc., which he and Keith started together.

313.

Keith also works in the consulting company as Vice President, helping

to operate the company from day to day.

59

314.

Together, Al and Keith have raised Al’s daughter from a previous

marriage since she was 12 years old. She now attends college and lives with Keith and

Al in the home they jointly own in the village of Jefferson, in the town of Holden,

Massachusetts.

315.

Together, they have contributed to the civic life of their community.

They have opened their home to foster children for both long term and respite care. In

addition, they have been active in and helped raise money for numerous charities and

benefits, including an annual walk to raise awareness about violence against women.

316.

After five years together, Al and Keith were married on May 20, 2004,

by the city clerk at Worcester City Hall, in strict and complete accordance with

Massachusetts law. Their marriage was the realization of a dream they had held ever

since they had become a committed couple. They will have been married for five years

as of May 20, 2009.

317.

Prior to marrying Al, Keith’s legal surname was Fitzpatrick. Keith,

Al, and their daughter discussed having the same last name after Keith and Al’s marriage

and agreed that Keith would change his surname to “Toney.”

318.

In accordance with Massachusetts General Laws Chapter 46, Section

1D, Keith legally changed his surname to “Toney” pursuant to marriage, as evidenced by

his listing “Toney” under “Surname After Marriage” on his marriage certificate, thus

sharing the same surname as Al and his daughter. Commonwealth of Massachusetts,

Department of Public Health, Registry of Vital Records and Statistics, Certificate of

Marriage, part 11A (May 20, 2004).

60

319.

On August 15, 2007, Keith applied to United States Department of

State (“State Department”), requesting that his passport be reissued under his true legal

and proper married name, Keith Douglas Toney.

320.

In support of his application, Keith provided his marriage license,

Massachusetts driver’s license, and other documents evidencing his legal name.

321.

At the time of Keith’s application in August 2007, the State

Department had a policy recognizing a marriage license as adequate evidence of a name

change. This policy was later codified as 22 C.F.R. § 51.25(c), which now states in

relevant part that “a name change will be recognized for purposes of issuing a passport if

the name change occurs in one of the following ways,” including subsection (3):

“Marriage. An applicant who has adopted a new name following marriage must present a

copy of the marriage certificate.”

322.

By letter dated September 11, 2007, the Washington Passport Agency

of the State Department denied Keith’s passport application. Letter from Ms. C. Pamela

Holliday, Regional Director, State Department, Washington, D.C., to Keith Douglas

Toney (Sept. 11, 2007).

323.

The September 11, 2007 denial provided the following reasoning:

We are unable to comply with your request for a name change based on the documentation you sent because the Defense of Marriage Act, Public Law 104199, 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 a wife.’” Therefore, the marriage certificate issued by Massachusetts, which you have submitted in support of your name change, is not acceptable as evidence for recognizing an immediate name change on the basis of marriage.

61

324.

On October 2, 2007, Keith replied to the September 11, 2007 denial

with a letter requesting that the Washington Passport Agency reconsider its denial of his

application and reissue his passport under his true legal and proper name, Keith Douglas

Toney. Letter from Keith Douglas Toney to C. Pamela Holliday, Regional Director,

State Department, Washington, D.C. (Oct. 2, 2007).

325.

In support of his October 2, 2007 request, Keith submitted an affidavit

attesting to his legal name change, along with copies of the following state-issued

documents: (a) his marriage certificate listing his surname after marriage as “Toney,” (b)

his reissued Massachusetts driver’s license under his legal surname after marriage,

Toney, and (c) a notice from the Town of Holden acknowledging that his voter

registration name has been changed to his legal surname after marriage, Toney.

326.

The Washington Passport Agency of the State Department phoned

Keith on October 31, 2007, informing him that his application had been denied and that

his passport would be reissued under his prior surname, Fitzpatrick. He later received a

new passport in his prior surname.

327.

The only dispute between Keith and the State Department concerns an

issue of constitutional law that lies beyond the purview of the State Department.

328.

As a result of the State Department’s refusal to issue Keith’s passport

in his correct legal name, both Al and Keith have suffered specific and concrete harm,

including emotional harm. In particular, given heightened security concerns world-wide

since September 11, 2001, travelling in a foreign country with an inconsistent and

inaccurate passport that does not match Keith’s other identification documents or have

his correct, legal name has caused them both to feel vulnerable and insecure when they

62

have travelled abroad. It has also caused inconvenience and confusion when conducting simple transactions such as renting a car or cashing a traveler’s check. Given that Keith carries conflicting identification, and his passport does not match his credit cards, he is forced to explain his personal circumstances to complete strangers in other countries, often across language barriers, further heightening his and Al’s sense of vulnerability.

COUNT I (Nancy Gill and Marcelle Letourneau
v. Office of Personnel Management, United States Postal Service and John E. Potter)

329.

Plaintiffs Nancy Gill and Marcelle Letourneau repeat and reallege the

allegations set forth in Paragraphs 13-14, 35-58, and 59-97 as if fully set forth herein.

330.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.

331.

Federal employees who are eligible for FEHB are also eligible to

participate in the Federal Flexible Spending Account Program, including HCFSA.

332.

In 2004, Congress expanded health insurance benefits for federal

employees by adopting the “Federal Employee Dental and Vision Benefits Enhancement

Act of 2004.” Public Law 108-496.

333.

The vision portion of the FEDVIP is a creature of federal statute,

Chapter 89B of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8981-92.

334.

The FEHB Program, the Federal Flexible Spending Account Program,

and the FEDVIP Program extend to United States Postal employees. See 39 U.S.C.

§1005(f).

63

335.

Pursuant to Congressional authority, 5 U.S.C. § 8913, OPM prescribes

all regulations to carry out the FEHB program.

336.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

337.

Under existing FEHB statutory and regulatory provisions, the spouse

of a covered employee who has elected “Self and Family” coverage is automatically

enrolled for health insurance purposes under the FEHB Program.

338.

Under existing FEHB statutory and regulatory provisions, Nancy

would be able to provide for health insurance coverage to her spouse Marcelle under the

“Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies

health insurance coverage to a Postal Service employee’s spouse if that spouse is of the

same sex.

339.

Under existing FEHB statutory and regulatory provisions, Marcelle

would receive health insurance coverage under Nancy’s “Self and Family” plan but for

OPM’s application of DOMA, 1 U.S.C. § 7, which denies health insurance coverage to a

Postal Service employee’s spouse if that spouse is of the same sex.

340.

In addition to spousal coverage under the FEHB program, a Postal

Service employee’s spouse can be covered under the employee’s HCFSA.

341.

Nancy would be able to extend her HCFSA coverage to include

Marcelle but for OPM’s application of DOMA, 1 U.S.C. § 7, which precludes HCFSA

coverage to a Postal Service employee’s spouse if that spouse is of the same sex.

64

342.

Marcelle would be covered by Nancy’s HCFSA but for OPM’s

application of DOMA, 1 U.S.C. § 7, which precludes HCFSA coverage to a Postal

Service employee’s spouse if that spouse is of the same sex.

343.

Pursuant to Congressional authority, 5 U.S.C. § 8992(a), OPM

prescribes regulations to carry out FEDVIP.

344.

The pertinent regulations promulgated by OPM are contained in Part

894 of Title 5 of the Code of Federal Regulations.

345.

Under FEDVIP statutory and regulatory provisions, a covered

employee who has elected “Self and Family” enrollment for FEDVIP makes coverage

available for all eligible family members. “Member of family” is defined in Chapter

89B, 5 U.S.C. § 8991(2), as having the same meaning as that term has for FEHB under

Chapter 89, 5 U.S.C. § 8901(5), i.e., including the covered employee’s spouse.

346.

Under existing FEDVIP statutory and regulatory provisions, Nancy

would be able to enroll Marcelle in the vision coverage under the FEDVIP but for OPM’s

application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance coverage

to a Postal Service employee’s spouse if that spouse is the same sex as the employee.

347.

Under existing FEDVIP statutory and regulatory provisions, Marcelle

would be enrolled in Nancy’s enhanced vision coverage under the FEDVIP but for

OPM’s application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance

coverage to a Postal Service employee’s spouse if that spouse is of the same sex as the

employee.

348.

The disparity of treatment with regard to federal employment-related

benefits available to Nancy and Marcelle is not mandated by DOMA, 1 U.S.C. § 7, but

65

rather reflects an improper and overly narrow construction of the permissible bounds of

OPM’s authority to extend coverage to family members.

349.

All federal statutory provisions as to employment-related benefits that

turn on “member of family,” “family” or “family members,” including but not limited to

5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of

coverage availability but do not establish absolute ceilings or outer boundaries of

coverage.

350.

To the extent that the disparity of treatment with regard to federal

employment-related benefits available to Nancy and Marcelle is, in fact, mandated by

DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats

similarly-situated individuals differently without justification in excess of Congressional

authority in violation of the right of equal protection secured by the Fifth Amendment of

the Constitution of the United States.

351.

An actual controversy exists between and among the parties.

COUNT II (Martin Koski and James Fitzgerald
v. Office of Personnel Management)

352.

Plaintiffs Martin Koski and James Fitzgerald repeat and reallege the

allegations set forth in Paragraphs 15-16, 35-58, and 98-123 as if fully set forth herein.

353.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.

354.

Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM

prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.

66

355.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

356.

The FEHB Program extends to qualified annuitants of the Social

Security Administration, including Martin. See 5 U.S.C. §§ 8901, 8905.

357.

Under existing FEHB statutory and regulatory provisions, a qualified

annuitant may elect “Self and Family” coverage and enroll his spouse for health

insurance benefits under the FEHB program.

358.

Under existing FEHB statutory and regulatory provisions, Martin

would be able to enroll Jim in a “Self and Family” plan but for OPM’s application of

DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a retired federal

employee’s spouse if that spouse is of the same sex.

359.

Under existing FEHB statutory and regulatory provisions, Jim would

be enrolled in Martin’s “Self and Family” plan but for OPM’s application of DOMA, 1

U.S.C. § 7, which denies spousal health insurance coverage to a retired federal

employee’s spouse if that spouse is of the same sex.

360.

The disparity of treatment with regard to federal employment-related

benefits available to Martin and Jim is not mandated by DOMA, 1 U.S.C. § 7, but rather

reflects an improper and overly narrow construction of the permissible bounds of OPM’s

authority to extend coverage to family members.

361.

All federal statutory provisions as to employment-related benefits that

turn on “member of family,” “family” or “family members,” including but not limited to

5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of

67

coverage availability but do not establish absolute ceilings or outer boundaries of

coverage.

362.

To the extent that the disparity of treatment with regard to federal

employment-related benefits available to Martin and Jim is, in fact, mandated by DOMA,

1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly-

situated individuals differently without justification in excess of Congressional authority

in violation of the right of equal protection secured by the Fifth Amendment of the

Constitution of the United States.

363.

An actual controversy exists between and among the parties.

COUNT III (Dean Hara
v. Office of Personnel Management
and Michael J. Astrue)

364.

Plaintiff Dean Hara repeats and realleges the allegations set forth in

Paragraph 17, 35-58, 90-94, 112-116, and 124-169 as if fully set forth herein.

365.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

366.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

367.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

368.

Under 42 U.S.C. § 402(i), the widower of a deceased person shall

receive a lump-sum benefit of $255 after the death of his spouse.

68

369.

Under existing Social Security statutory and regulatory provisions,

Dean would be entitled to the $255 death benefit as the legal surviving spouse of Gerry

Studds but for DOMA, 1 U.S.C. § 7, which denies the benefit to an otherwise qualifying

surviving spouse if that spouse is the same sex.

370.

DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification

with respect to Social Security benefits that treats similarly-situated individuals

differently without justification in excess of Congressional authority in violation of the

right of equal protection secured by the Fifth Amendment of the Constitution of the

United States.

371.

Dean’s constitutional claims are ripe for review by this Court.

372.

Dean’s application for the lump-sum benefit raises no disputed issues

of fact.

373.

DOMA, 1 U.S.C. § 7, alone bars Dean from receiving the lump-sum

benefit.

374.

It would be futile for Dean to pursue any further administrative

process, because the SSA’s position that DOMA, 1 U.S.C. § 7, bars him from receiving

the lump-sum death benefit is the sole basis for its denial of his claim and raises a

constitutional issue that is beyond the SSA’s purview.

375.

The civil service retirement program for federal employees is a

creature of federal statute, Subchapter III of Chapter 83 of Title 5 of the United States

Code. See generally 5 U.S.C. §§ 8331 et seq.

69

376.

Survivor annuities for surviving spouses of federal employees,

including Members of Congress, are also a creature of federal statute, 5 U.S.C. §§ 8339

and 8341.

377.

Pursuant to Congressional authority, 5 U.S.C. § 8347(a), OPM

prescribes all regulations to carry out Subchapter III of Chapter 83 of Title 5 of the

United States Code.

378.

The pertinent regulations promulgated by OPM are contained in Part

831 of Title 5 of the Code of Federal Regulations.

379.

Under existing civil service statutory and regulatory provisions and in

light of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Dean would be entitled to a spousal

survivor annuity as the legal surviving spouse of retired federal employee Gerry Studds

but for DOMA, 1 U.S.C. § 7, which precludes the granting of the surviving spousal

annuity to an otherwise qualifying surviving spouse if that spouse is of the same sex.

380.

The disparity of treatment with regard to CSRS survivor annuities that

is mandated by OPM’s application of DOMA, 1 U.S.C. § 7, creates a classification that

treats similarly-situated individuals differently without justification in excess of

Congressional authority in violation of the right of equal protection secured by the Fifth

Amendment of the Constitution of the United States.

381.

Dean has exhausted all administrative remedies to adjudicate all

necessary factual issues regarding his claim for a CSRS survivor annuity within the

purview of the MSPB.

382.

In light of the MSPB’s decision, there are no factual disputes.

70

383.

Dean’s spousal survivor annuity claim is properly presented in federal

district court.

384.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. § 8901 et seq.

385.

Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM

prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.

386.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

387.

Under FEHB statutory and regulatory provisions, the surviving spouse

of a retired federal employee/annuitant is eligible to enroll in a federal health insurance

program if, at the time of the annuitant’s death, the annuitant had elected “Self and

Family” health insurance coverage and if the surviving spouse is also eligible for a

spousal survivor annuity.

388.

Under pertinent FEHB statutory and regulatory provisions and in light

of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to

Dean, or, in the alternative, is deemed to have in fact elected for Dean, a spousal survivor

annuity.

389.

Under pertinent FEHB statutory and regulatory provisions and in light

of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to

Dean, or, in the alternative, is deemed to have in fact elected for Dean, his inclusion

under federal health insurance coverage.

71

390.

OPM is estopped under the MSPB’s final decision in Dean Hara v.

Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I-2,

from enforcing any asserted requirement of election by Congressman Studds vis-à-vis

“Self and Family” coverage.

391.

Under pertinent FEHB statutory and regulatory provisions, Dean

would be able to receive health insurance coverage but for OPM’s application of DOMA,

1 U.S.C. § 7, which denies health insurance coverage to a federal employee’s surviving

spouse if that surviving spouse is of the same sex.

392.

The disparity of treatment with regard to FEHB health insurance

available to Dean is not mandated by DOMA, 1 U.S.C. § 7, but rather reflects an

improper and overly narrow construction of the permissible bounds of OPM’s authority

to extend benefits to family members.

393.

All federal statutory provisions as to FEHB health insurance that turn

on “member of family” or “spouse,” including but not limited to 5 U.SC. §§ 8901, set

general guidelines and minimum requirements of coverage availability but do not

establish absolute ceilings or outer boundaries of coverage.

394.

To the extent that a disparity of treatment with regard to the FEHB

program is mandated by DOMA, 1 U.S.C. § 7, it creates a classification that treats

similarly-situated individuals differently without justification in excess of Congressional

authority in violation of the right of equal protection secured by the Fifth Amendment of

the Constitution of the United States.

395.

Dean has made presentment of his claim for enrollment in the FEHB

program.

72

396.

Dean’s application for FEHB health insurance raises no disputed

issues of fact.

397.

DOMA, 1 U.S.C. § 7, alone bars Dean from receiving FEHB health

insurance.

398.

It would be futile for him to pursue further administrative remedies

given OPM’s practice and policy of barring members of marriages between two

individuals of the same sex from receiving FEHB benefits on the basis of DOMA, 1

U.S.C. § 7, including plaintiffs Nancy Gill and Martin Koski.

399.

Review of this practice and policy raises a constitutional issue beyond

the purview of OPM.

400.

An actual controversy exists between and among the parties.

COUNT IV (Mary Ritchie and Kathleen Bush
v. United States of America)

401.

Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

402.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction under 28 U.S.C. § 1346

(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United

States of America.

403.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2004.

73

404.

On or before April 15, 2005, Mary timely filed with the IRS Service

Center at Andover, Massachusetts a federal income tax return for the year 2004 using the

Head of Household filing status. Mary timely paid federal income tax of $5,531 on

account of this federal income tax return.

405.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

406.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $1,054,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

rather than Mary and Kathy being permitted to file one federal income tax return as

Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

407.

The IRS disallowed the claim by letter dated July 17, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

408.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status. As a result of this

disparity of treatment, Mary and Kathy paid $1,054 more in federal income tax in 2004

than a similarly situated different-sex married couple would have paid.

74

409.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT V (Mary Ritchie and Kathleen Bush
v. United States of America)

410.

Plaintiffs Mary Ritchie and Kathleen Bush, repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

411.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

412.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2005.

413.

On or before April 15, 2006, Mary timely filed with the IRS Center at

Andover, Massachusetts a federal income tax return for the year 2005 using the Head of

Household filing status. Mary timely paid federal income tax of $7,554 on account of

this federal income tax return.

414.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

75

415.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $2,703,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

rather than Mary and Kathy being able to file on one federal income tax return as Married

Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

416.

The IRS disallowed the claim by letter dated July 18, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

417.

An individual married to a person of a different sex is not forced to file

his or her federal income tax returns as anything other than Married. Indeed, he or she is

required to file using his or her legal marital status. Legally married same-sex couples

are forced to use an incorrect marital status, which results in a different federal income

tax assessment than if they had used their correct married status. As a result of this

disparity of treatment, Mary Ritchie and Kathleen Bush paid $2,703 more in federal

income tax in 2005 than a similarly situated different-sex married couple would have

paid.

418.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

76

COUNT VI (Mary Ritchie and Kathleen Bush
v. United States of America)

419.

Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

420.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

421.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2006.

422.

On or before April 15, 2007, Mary timely filed with the IRS Service

Center at Andover, Massachusetts a federal income tax return for the year 2006 using the

Head of Household filing status. Mary timely paid federal income tax of $13,626 on

account of this federal income tax return.

423.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

424.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $4,390,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

77

rather than Mary and Kathy Bush being able to file on one federal income tax return as

Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

425.

The IRS disallowed the claim by letter dated July 18, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

426.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $4,390 more in

federal income tax in 2006 than a similarly situated different-sex married couple would

have paid.

427.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT VII (Melba Abreu and Beatrice Hernandez
v. United States of America)

428.

Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege

the allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth

herein.

78

429.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

430.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2004.

431.

On or before April 15, 2005, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2004 using the

Single filing status. Melba timely paid federal income taxes of $16,306 on account of

this federal income tax return.

432.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

433.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $4,687, based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

434.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

435.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

79

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Melba Abreu and Beatrice Hernandez paid $4,687

more in federal income tax in 2004 than a similarly situated different-sex married couple

would have paid.

436.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT VIII (Melba Abreu and Beatrice Hernandez
v. United States of America)

437.

Melba Abreu and Beatrice Hernandez, repeat and reallege the

allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth herein.

438.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

439.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2005.

80

440.

On or before April 15, 2006, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2005 using the

Single filing status. Melba timely paid federal income tax of $12,621 on account of this

federal income tax return.

441.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

442.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $3,785 based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

443.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

444.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Melba and Beatrice paid $3,785 more in federal

income tax in 2005 than a similarly situated different-sex married couple would have

paid.

81

445.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT IX (Melba Abreu and Beatrice Hernandez
v. United States of America)

446.

Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege

the allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth

herein.

447.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

448.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2006.

449.

On or before April 15, 2007, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2006 using the

Single filing status. Melba timely paid federal income tax of $24,467 on account of this

federal income tax return.

82

450.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

451.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $5,546 based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

452.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

453.

An individual married to a person of a different sex is not forced to file

his or her federal income tax returns as anything other than Married. Indeed, he or she is

required to file using his or her legal marital status. Legally married same-sex couples

are forced to use an incorrect marital status, which results in a different federal income

tax assessment than if they had used their correct married status. As a result of this

disparity of treatment, Melba and Beatrice paid $5,546 more in federal income tax in

2006 than a similarly situated different-sex married couple would have paid.

454.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

83

COUNT X (Jo Ann Whitehead and Bette Jo Green
v. Michael J. Astrue)

455.

Plaintiffs Bette Jo Green and Jo Ann Whitehead repeat and reallege

the allegations set forth in Paragraphs 22-23, 35-58, and 235-257 as if fully set forth

herein.

456.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

457.

Pursuant to 42 U.S.C. § 902, defendant Michael J. Astrue enforces

federal law concerning eligibility for Social Security benefits through his supervision of

the SSA.

458.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

459.

Under existing Social Security statutory and regulatory provisions, see

42 U.S.C. § 402(f), individuals who qualify for old-age insurance benefits are eligible to

extend those benefits to their spouses. Pursuant to the Social Security Act, a spouse who

applies for Social Security benefits at full retirement age and has a benefit lower than

50% of that of his or her spouse receives an amount equal to 50% of his or her spouse’s

full retirement benefit.

460.

As a person legally married under Massachusetts law, Bette Jo would

be able to share the benefit of her earnings record with her spouse Jo Ann but for DOMA,

1 U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if

that spouse is of the same sex.

84

461.

As a person legally married under Massachusetts law, Jo Ann would

be entitled to old-age insurance benefits from her spouse Bette Jo but for DOMA, 1

U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if

that spouse is the same sex.

462.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

463.

It would be futile for Jo Ann to proceed further with the SSA because

she cannot obtain the spousal benefit solely because of DOMA, 1 U.S.C. § 7 and because

the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

464.

An actual controversy exists between and among the parties.

COUNT XI (Randell Lewis-Kendell
v. Michael J. Astrue)

465.

Plaintiff Randell Lewis-Kendell repeats and realleges the allegations

set forth in Paragraphs 24, 35-58, and 258-286 as if fully set forth herein.

466.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

467.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

85

468.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

469.

Under existing federal law, 42 U.S.C. § 402(i), the widower of a

deceased person shall receive a lump-sum benefit of $255 after the death of his spouse.

470.

As a person legally married under Massachusetts law, Randy would

receive the lump-sum death benefit authorized under the Social Security Act but for

DOMA, 1 U.S.C. § 7, which denies the lump-sum death benefit to an individual who is

married to someone of the same sex.

471.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

472.

It would be futile for Randy to proceed further with the SSA because

he cannot obtain the lump-sum benefit solely because of DOMA, 1 U.S.C. § 7, and

because the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

473.

An actual controversy exists between and among the parties.

COUNT XII (Herbert Burtis
v. Michael J. Astrue)

474.

Plaintiff Herbert Burtis repeats and realleges the allegations set forth in

Paragraphs 25, 35-58, and 287-310 as if fully set forth herein.

475.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

86

476.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

477.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

478.

Under federal law, 42 U.S.C. § 402(i), the widower of a deceased

person shall receive a lump-sum of $255 after the death of his spouse.

479.

Herb’s claim for the lump-sum death benefit was denied because of

DOMA, 1 U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to

interpret the Social Security Act to deny benefits to persons married to spouses of the

same sex.

480.

As a legally married person under Massachusetts law, Herb would

receive the lump-sum death benefit authorized under the Social Security Act, but for the

SSA’s position that federal law—as applied by the SSA—precludes the grant of the

lump-sum death benefit to an individual who is married to someone of the same sex.

481.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

482.

It would be futile for Herb to proceed further with the SSA because he

cannot obtain the lump-sum benefit solely because of DOMA, 1 U.S.C. § 7, and because

the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

87

483.

Under federal law, 42 U.S.C. § 402(g), the widower of a deceased

insured shall receive insurance benefits up to the primary insurance amount earned by his

insured deceased spouse.

484.

Herb’s claim for the survivor benefit was denied because of DOMA, 1

U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to interpret the

Social Security Act to deny benefits to persons married to spouses of the same sex.

485.

As a person legally married under Massachusetts law, Herb would be

entitled to the survivor benefit from his deceased spouse John but for DOMA, 1 U.S.C.

§ 7, which denies survivor benefits to a covered individual’s spouse if that spouse is of

the same sex.

486.

DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification

with respect to Social Security benefits that treats similarly-situated individuals

differently without justification in excess of Congressional authority in violation of the

right of equal protection secured by the Fifth Amendment of the Constitution of the

United States.

487.

Further administrative process within the SSA is futile because

DOMA, 1 U.S.C. § 7, requires the survivor benefit be denied to Herb, and the SSA

cannot consider the constitutionality of DOMA, 1 U.S.C. § 7, or the constitutionality of

any interpretation of the Social Security statute denying the validity of his marriage.

488.

An actual controversy exists between and among the parties.

COUNT XIII (Keith Toney & Albert Toney III
v. Hillary Rodham Clinton)

88

489.

Plaintiffs Keith and Albert Toney III repeat and reallege the

allegations set forth in Paragraphs 26-27, 35-58, and 311-328 as if fully set forth herein.

490.

The issuance of United States passports is controlled generally by

Chapter 4 of Title 22 of the United States Code. See generally 22 U.S.C. §§ 211a, et.

seq.

491.

Under 22 U.S.C. § 211a, the Secretary of State has the authority to

grant and issue passports in accordance with United States law.

492.

Pursuant to Congressional authority, 22 U.S.C. § 2651a(4), the

Secretary of State prescribes all regulations to carry out Chapter 4 of Title 22 of the

United States Code.

493.

The pertinent regulations promulgated by the Secretary of State are

contained in Part 51 of Title 22 of the Code of Federal Regulations.

494.

The Secretary of State refused to issue Keith’s passport in his married

name solely because of the State Department’s position that DOMA, 1 U.S.C.

§ 7, precludes the interpretation of the term “marriage” to include a marriage between

people of the same sex.

495.

Under the practice now codified by 22 C.F.R. § 51.25(c)(3), if Keith

were married to a woman, not a man, he would be entitled to the issuance of a United

States passport in his legal surname after marriage upon presenting a copy of the

marriage certificate to the State Department. Because of DOMA, 1 U.S.C. § 7, as applied

by the State Department, Keith was treated differently from a similarly situated person

married to an individual of a different sex.

89

496.

Both Keith and Al are harmed by the fact that Keith must travel with a

passport that is not issued in his true legal name. Both are subjected to insecurity and

fear that Keith may be detained, denied entry into other countries, or denied re-entry into

the United States.

497.

DOMA, 1 U.S.C. § 7, as applied by the State Department, creates a

classification with respect to the issuance of passports that treats similarly-situated

individuals differently without justification in excess of Congressional authority in

violation of the right of equal protection secured by the Fifth Amendment of the

Constitution of the United States.

498.

An actual controversy exists between and among the parties.

PRAYERS FOR RELIEF

WHEREFORE, the plaintiffs pray that this Court: 1. Declare that the FEHB Program, the HCSFA, and the FEDVIP Program permit coverage of same-sex spouses under their authorizing statutes and regulations. 2. Declare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiffs. 3. Enjoin the defendants from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex. 4. Issue an injunction ordering defendant Michael J. Astrue to review the applications for benefits of plaintiffs Jo Ann Whitehead, Randy Lewis-Kendell, Herb Burtis, and Dean Hara without regard to DOMA, 1 U.S.C. § 7.

90

5. Award plaintiffs Mary Ritchie and Kathleen Bush judgment in the amount

of $8,147, plus interest and costs as allowed by law, and such other relief as this Court

may deem just, including the award of reasonable litigation costs incurred in this

proceeding under 26 U.S.C. § 7430.

6. Award plaintiffs Melba Abreu and Beatrice Hernandez judgment in the

amount of $14,018, plus interest and costs as allowed by law, and such other relief as this

Court may deem just, including the award of reasonable litigation costs incurred in this

proceeding under 26 U.S.C. § 7430.

7. Award attorney’s fees and costs to plaintiffs pursuant to 28 U.S.C. § 2412

or any other applicable statutory provision.

8. Grant such other relief as is just and appropriate.

NANCY

GILL & MARCELLE LETOURNEAU MARTIN KOSKI & JAMES FITZGERALD DEAN HARA MARY RITCHIE & KATHLEEN BUSH MELBA ABREU & BEATRICE HERNANDEZ JO ANN WHITEHEAD & BETTE JO GREEN RANDELL LEWIS-KENDELL HERBERT BURTIS KEITH TONEY & ALBERT TONEY III

By their attorneys,

GAY

& LESBIAN ADVOCATES & DEFENDERS

Gary gbuseck@glad.org Mary mbonauto@glad.org Ni neshghi@glad.org Janson jwu@glad.org

/s/ Gary D. Buseck D. Buseck, BBO # 067540
L. Bonauto, BBO # 549967
ma R. Eshghi, BBO # 633716
Wu, BBO # 600949

91

30 Boston, (617)

Winter Street, Suite 800 MA 02108
426-1350

AS TO PLAINTIFFS MARTIN KOSKI & JAMES FITZGERALD, DEAN HARA, MARY RITCHIE & KATHLEEN BUSH, MELBA ABREU & BEATRICE HERNANDEZ, JO ANN WHITEHEAD & BETTE JO GREEN, RANDELL LEWIS-KENDELL, HERBERT BURTIS, AND KEITH TONEY & ALBERT TONEY III,

FOLEY

HOAG LLP

/s/ Claire claporte@foleyhoag.com Vickie vhenry@foleyhoag.com Matthew mmiller@foleyhoag.co Am asenier@foleyhoag.com Seaport 155 Boston, (617)

Claire Laporte Laporte, BBO # 554979
L. Henry, BBO # 632367
Miller, BBO # 655544 m
y Senier, BBO # 672912
World Trade Center West Seaport Boulevard
MA 02210-2600 832-1000

AS TO PLAINTIFFS MARY RITCHIE & KATHLEEN BUSH, AND MELBA ABREU & BEATRICE HERNANDEZ,

SULLIVAN

& WORCESTER LLP

/s/ David
Richard
Boston, 617

David J. Nagle J. Nagle, BBO # 638385
dnagle@sandw.com L. Jones, BBO # 631273
rjones@sandw.com One Post Office Square
MA 02109 338-2800

DATED: March 3, 2009

92

 
 Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 1 of 92

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS

__________________________________________

NANCY GILL & MARCELLE LETOURNEAU, )

MARTIN KOSKI & JAMES FITZGERALD,

)

DEAN HARA,

)

MARY RITCHIE & KATHLEEN BUSH,

)

MELBA ABREU & BEATRICE HERNANDEZ, )

JO ANN WHITEHEAD & BETTE JO GREEN, )

RANDELL LEWIS-KENDELL,

)

HERBERT BURTIS, and

)

KEITH TONEY & ALBERT TONEY III,

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF PERSONNEL MANAGEMENT, )

UNITED STATES POSTAL SERVICE,

)

JOHN E. POTTER, in his official capacity as

)

the Postmaster General of the United States of )

America,

)

MICHAEL J. ASTRUE, in his official capacity )

as the Commissioner of the Social Security

)

Administration,

)

HILLARY RODHAM CLINTON, in her official )

capacity as United States Secretary of State,

)

ERIC H. HOLDER JR., in his official capacity )

as the United States Attorney General, and

)

THE UNITED STATES OF AMERICA,

)

Defendants.

)

__________________________________________)

CIVIL ACTION NO.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, OR OTHER RELIEF AND FOR REVIEW OF AGENCY ACTION

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 2 of 92

Introduction/Nature of the Action

1.

This is a case about federal discrimination against gay and lesbian

individuals married to someone of the same sex, and the harm that discrimination has

caused each plaintiff.

2.

Plaintiffs in this action are citizens of the Commonwealth of

Massachusetts and the United States of America. Each of the plaintiffs is, or was until

becoming a widower, legally married to a person of the same sex in accordance with the

requirements of Massachusetts state law.

3.

Although the federal government does not license marriages, a large

number of its programs take marital status into account in determining eligibility for

federal protections, benefits and responsibilities. Statute, precedent, and practice

establish state law as the touchstone for determining a couple’s marital status for

purposes of determining eligibility for federal programs.

4.

Each plaintiff, or his or her spouse, has made one or more requests to

the appropriate agencies or authorities within the federal government for treatment as a

married couple, a spouse, or a widower with respect to particular programs or benefits.

Yet each of the plaintiffs has been denied and is still being denied legal protections and

benefits under federal law that are available to a similarly situated person married to an

individual of a different sex under Massachusetts law.

5.

With each denial of specific protections or benefits, the defendants or

their agents have invoked the “Defense of Marriage Act,” P.L. 104-199, codified in part

as 1 U.S.C. § 7 (“DOMA, 1 U.S.C. § 7”) and have stated that the federal government will

only respect marriages between a man and a woman.

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Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 3 of 92

6.

Several of the plaintiffs, as set forth below, seek spousal protections

based on their employment with, or their spouse’s employment with, the United States

government. Plaintiff Nancy Gill, a 21-year employee of the United States Post Office,

already receives “Self and Family” health insurance coverage for herself and the two

children she has with her spouse, plaintiff Marcelle Letourneau, through her job at the

Post Office. Yet, unlike postal workers married to spouses of the opposite sex (see below

at Paragraphs 59-97), she is unable to add her spouse, Marcelle, to that plan or to the

vision benefit plan, nor can she use her flexible spending account for Marcelle’s medical

expenses. Plaintiff Martin Koski, a retiree from the Social Security Administration, has

been denied health insurance coverage for his spouse, plaintiff James Fitzgerald, although

retired employees who are married to someone of a different sex may add their spouses to

such coverage, as described below at Paragraphs 98-123. Plaintiff Dean Hara is the

surviving spouse of Gerry Studds, a retired Member of the United States Congress. Dean

has been denied both health insurance and the survivor annuity normally available to

surviving spouses, which is described below at Paragraphs 124-169. In each instance,

DOMA, 1 U.S.C. § 7, has barred the plaintiffs’ access to benefits routinely granted to

others in similar circumstances.

7.

Several of the plaintiffs, as set forth below, have been denied their

correct spousal status by the Internal Revenue Service (“IRS”) on the basis of DOMA, 1

U.S.C. § 7, and thus have been required to pay more in federal income taxes than other

similarly situated people married to someone of a different sex. Plaintiffs Melba Abreu

and Beatrice Hernandez, as described below at Paragraphs 204-234, and plaintiffs Mary

Ritchie and Kathleen Bush, as described below at Paragraphs 170-203, seek to file their

3

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 4 of 92

federal income tax returns as “Married Filing Jointly” rather than as “Single” or “Head of

Household.” Plaintiff Mary Ritchie also seeks to contribute funds to a “spousal IRA” for

her spouse Kathleen Bush, to contribute to her retirement security, as an income-earning

person who is married to someone of a different sex may do (see below at Paragraph

187). Plaintiffs Abreu and Hernandez and plaintiffs Ritchie and Bush filed amended

federal income tax returns with the IRS, asking to be re-categorized as married taxpayers

and requesting refunds. The IRS rejected each amended federal income tax return and

accompanying refund claim on the basis of DOMA, 1 U.S.C. § 7.

8.

Several of the plaintiffs, as set forth below, seek spousal protections

afforded by the Social Security program. Three different widowers, plaintiff Randell

Lewis-Kendell, as described below at Paragraphs 258-286, plaintiff Herbert Burtis, as

described below at Paragraphs 287-310, and plaintiff Dean Hara, as described below at

Paragraphs 124-169, seek the “One-Time Lump-Sum Death Benefit” normally available

upon the death of a spouse. Plaintiff Burtis, relying on the long work record of his

spouse, also seeks the survivor benefit normally available to a widower married to

someone of the opposite sex, as described below at Paragraphs 300-310. This benefit

would increase his monthly Social Security payment by approximately $700 per month,

to the level of the monthly payment that his deceased spouse John Ferris received before

his death. As a person married to a spouse of a different sex is entitled to do (see below

at Paragraph 246), plaintiff Jo Ann Whitehead, as described below at Paragraphs 235-57,

seeks to increase her monthly Social Security payment based on the work record of her

spouse, plaintiff Bette Jo Green, who has had higher earnings during their long

4

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 5 of 92

relationship. Each of these plaintiffs has been denied these benefits by the Social

Security Administration because of DOMA, 1 U.S.C. § 7.

9.

Plaintiff Keith Toney seeks a passport bearing his correct name, which

he lawfully changed as a consequence of his 2004 marriage to plaintiff Albert Toney III,

as described below at Paragraphs 311-328. Invoking DOMA, 1 U.S.C. § 7, the State

Department denied plaintiff Keith Toney’s request for a passport in his married name

despite submission of his marriage certificate and other government-issued identification,

although it accepts name changes effectuated through marriage for a person married to an

individual of a different sex who submits the same documentation.

10.

This is an action for declaratory and injunctive relief pursuant to 28

U.S.C. §§ 2201-2202 and Fed. R. Civ. P. Rule 57 and for review of agency action

pursuant to 5 U.S.C. §§ 701-706. It seeks a determination that DOMA, 1 U.S.C. § 7, as

applied to plaintiffs, violates the United States Constitution by refusing to recognize

lawful marriages for purposes of the laws governing benefits for federal employees and

retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations

governing issuance of passports. The result of these violations of the Constitution is that

each of the plaintiffs has been denied, and will continue to be denied, legal protections

and benefits under federal law that would be available to them if their spouses were of the

opposite sex.

Jurisdiction and Venue

11.

This action arises under the Constitution of the United States and the

laws of the United States, including 26 U.S.C. § 7422. The jurisdiction of this Court is

5

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 6 of 92

invoked pursuant to 5 U.S.C. § 8912; 5 U.S.C. § 8991; 28 U.S.C. § 1331; 28 U.S.C.

§ 1346(a)(1); and 42 U.S.C. § 405(g).

12.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) and 28

U.S.C. § 1402(a)(1), because the plaintiffs reside in this district, and the events giving

rise to these claims arose in this district.

Parties

13.

Plaintiff NANCY GILL is a citizen of the Commonwealth of

Massachusetts and resides in Bridgewater, Massachusetts.

14.

Plaintiff MARCELLE LETOURNEAU is a citizen of the

Commonwealth of Massachusetts and resides in Bridgewater, Massachusetts.

15.

Plaintiff MARTIN KOSKI is a citizen of the Commonwealth of

Massachusetts and resides in Bourne, Massachusetts.

16.

Plaintiff JAMES FITZGERALD is a citizen of the Commonwealth of

Massachusetts and resides in Bourne, Massachusetts.

17.

Plaintiff DEAN HARA is a citizen of the Commonwealth of

Massachusetts and resides in Boston, Massachusetts.

18.

Plaintiff MARY RITCHIE is a citizen of the Commonwealth of

Massachusetts and resides in Framingham, Massachusetts.

19.

Plaintiff KATHLEEN BUSH is a citizen of the Commonwealth of

Massachusetts and resides in Framingham, Massachusetts.

20.

Plaintiff MELBA ABREU is a citizen of the Commonwealth of

Massachusetts and resides in Boston, Massachusetts.

6

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 7 of 92

21.

Plaintiff BEATRICE HERNANDEZ is a citizen of the Commonwealth

of Massachusetts and resides in Boston, Massachusetts.

22.

Plaintiff JO ANN WHITEHEAD is a citizen of the Commonwealth of

Massachusetts and resides in Jamaica Plain, Massachusetts.

23.

Plaintiff BETTE JO GREEN is a citizen of the Commonwealth of

Massachusetts and resides in Jamaica Plain, Massachusetts.

24.

Plaintiff RANDELL LEWIS-KENDELL is a citizen of the

Commonwealth of Massachusetts and resides in Harwich Port, Massachusetts.

25.

Plaintiff HERBERT BURTIS is a citizen of the Commonwealth of

Massachusetts and resides in Sandisfield, Massachusetts.

26.

Plaintiff KEITH TONEY is a citizen of the Commonwealth of

Massachusetts and resides in Jefferson, Massachusetts.

27.

Plaintiff ALBERT TONEY III is a citizen of the Commonwealth of

Massachusetts and resides in Jefferson, Massachusetts.

28.

Defendant OFFICE OF PERSONNEL MANAGEMENT is an

independent establishment of the Executive Branch of the government of the United

States. Its actions, rules, and regulations are subject to review by the federal courts.

29.

Defendant UNITED STATES POSTAL SERVICE is an independent

establishment of the Executive Branch of the government of the United States,

empowered by Congress to sue and be sued in its own name.

30.

Defendant JOHN E. POTTER is currently the Postmaster General of

the United States of America. In his official capacity, the Postmaster General is

7

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 8 of 92

responsible for the administration of employee-related benefits within the United States

Postal Service.

31.

Defendant MICHAEL J. ASTRUE is currently the Commissioner of

the Social Security Administration, an independent agency of the United States

Government. In his official capacity, the Commissioner of the Social Security

Administration is responsible for the administration and enforcement of the Social

Security Act.

32.

Defendant HILLARY RODHAM CLINTON is currently the United

States Secretary of State. In her official capacity, the Secretary of State is responsible for

the administration and operation of the Passport Services Directorate.

33.

Defendant ERIC H. HOLDER JR. is currently the Attorney General of

the United States. In his official capacity, the Attorney General is the chief federal

official responsible for the enforcement of all federal statutes in accordance with the

Constitution of the United States of America.

34.

Defendant THE UNITED STATES OF AMERICA is the proper

defendant in a complaint seeking refund of federal income taxes pursuant to 26 U.S.C.

§ 7422(f)(1).

Facts Common To All Plaintiffs And All Claims

35.

Each plaintiff is a citizen of the Commonwealth of Massachusetts and

of the United States and has borne the obligations of citizenship by paying taxes and

contributing to Social Security.

36.

As United States citizens, each of the plaintiffs is entitled to equal

consideration and treatment from the federal government, and with respect to each and

8

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 9 of 92

every program operated by the federal government, including employment and retirement

benefit programs arising from employment with the federal government, Social Security,

taxation, and passport services.

37.

Each of the plaintiffs is, or was until becoming a widower, married to

a person of the same sex in accordance with the legal requirements of the Commonwealth

of Massachusetts. Each of the plaintiffs married to nurture and support his or her family

and, for some plaintiffs, to raise children. Each of these marriages was duly recognized

under state law. However, DOMA, 1 U.S.C. § 7, burdens their ability to form and

support their marriages and families and to raise their children.

38.

As a sovereign State of the United States of America, the

Commonwealth of Massachusetts (hereafter, “the Commonwealth,” or “Massachusetts”)

has, since its ratification of the United States Constitution and, indeed, before then,

exclusively established and ordained the legal requirements for civil marriage within the

Commonwealth and the status of spouses to such marriages entered into within the

Commonwealth.

39.

Effective May 17, 2004, with the implementation of the Massachusetts

Supreme Judicial Court’s constitutional determination in Goodridge v. Dept. of Public

Health, 440 Mass. 309 (2003), same-sex couples who otherwise complied with the

requirements for obtaining a marriage license in the Commonwealth of Massachusetts

were and are entitled to marry under the law of the Commonwealth.

40.

Since May 17, 2004, the Commonwealth of Massachusetts, pursuant to

the Constitution of Massachusetts, has created, established, and recognized a single

9

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 10 of 92

marital status that is available to every qualifying couple, whether same-sex or different-

sex, i.e., regardless of the sex of the two parties to the marriage.

41.

Massachusetts has also made a political determination that different-

sex couples and same-sex couples must be treated the same with respect to marriage and

its attendant rights and responsibilities. The Massachusetts Legislature has rejected every

proposed constitutional amendment that would have reversed the Goodridge decision,

most recently at the constitutional convention session of June 14, 2007. Uncorrected

Proof of the Journal of the Senate, Thursday, June 14, 2007.

42.

The plaintiffs are similarly situated to persons married to individuals

of a different sex and, under Massachusetts law, are accorded the same status,

responsibilities, and protections as other married persons. Federal law, however, treats

same-sex opposite-sex couples differently in the specific ways set forth in Paragraphs 59

through 328 below.

43.

The federal government of the United States has, since its founding

and at least until 1996, recognized the exclusive authority every state possesses, as an

essential part of its sovereignty, to determine the civil status and capacities of all its

inhabitants, including the absolute right to prescribe the conditions upon which the

marriage relation between its own citizens shall be created.

44.

Throughout history and at least until 1996, the United States has

consistently deferred to the sovereignty of the States when the marital status of an

individual has been used as a marker of eligibility or access to some benefit, right, or

responsibility identified by the federal government.

10

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 11 of 92

45.

In 1996, in passing DOMA, 1 U.S.C. § 7, Congress took the

unprecedented step of preemptively nullifying a class of marriages that it expected states

would begin to license at some point in the future, that is, marriages of same-sex couples.

46.

If not for the application of DOMA, 1 U.S.C. § 7, to all federal

programs, the plaintiffs, as persons married under Massachusetts law, would receive the

same status, responsibilities and protections under federal law as other married persons.

Yet when same-sex couples began to marry in Massachusetts, DOMA, 1 U.S.C. § 7,

operated to single out one class of marriages legally recognized by the Commonwealth of

Massachusetts, those of same-sex couples, and to deny their existence for all conceivable

ends and purposes of federal law.

47.

Plaintiffs have been denied legal protections normally available to

spouses under federal law. Despite plaintiffs’ willingness to assume the legally imposed

responsibilities of marriage at the federal level, just as they do at the state level, they are

prevented from doing so by DOMA, 1 U.S.C. § 7.

The “Defense of Marriage Act” (“DOMA, 1 U.S.C. § 7”)

48.

Congress enacted the so-called “Defense of Marriage Act” (“DOMA,

1 U.S.C. § 7”), P.L. 104-199, in 1996, and it was approved on September 21, 1996.

49.

Section 3 of DOMA, 1 U.S.C. § 7, provides in its entirety as follows:

Sec. 3 DEFINITION OF MARRIAGE.

(a) IN GENERAL – Chapter 1 of title 1, United States Code is amended by adding at the end the following:

§7. Definition of ‘marriage’ and ‘spouse’

“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus

11

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 12 of 92

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.”

(b) CLERICAL AMENDMENT. – The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:

“7. Definition of ‘marriage’ and ‘spouse’.”

50.

In a 1997 Report, the General Accounting Office (“GAO”) estimated

that at least 1,049 federal laws were affected by DOMA, 1 U.S.C. § 7, because those laws

depended on or in some way related to marital status. U.S. Gen. Accounting Office,

GAO/OGC-97-16 Defense of Marriage Act (1997), available at

http://www.gao.gov/archive/1997/og97016.pdf. A follow-up study in 2004 found that

1,138 laws tied benefits, protections, or responsibilities to marital status. U.S. Gov.

Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at

http://www.gao.gov/new.items/d04353r.pdf.

51.

With regard to a gay or lesbian individual married to someone of the

same sex, DOMA, 1 U.S.C. § 7, has overridden the longstanding deference of federal to

state law in determining the marital status of an individual seeking the benefit or

responsibility of any federal law triggered by a person’s state-established marital status,

and categorically denies both rights and responsibilities.

52.

The official House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No.

104-664, advances four rationales for why the federal government drew a line between its

treatment of an individual married to a person of the same sex versus an individual

married to a person of the opposite sex. Those reasons are:

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Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 13 of 92

(1) H.R. 3396 [the bill number] ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING AND NURTURING THE INSTITUTION OF TRADITIONAL HETEROSEXUAL MARRIAGE.

(2) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN DEFENDING TRADITIONAL NOTIONS OF MORALITY.

(3) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PROTECTING STATE SOVEREIGNTY AND DEMOCRATIC SELF GOVERNANCE.

(4) H.R. 3396 ADVANCES THE GOVERNMENT’S INTEREST IN PRESERVING SCARCE GOVERNMENT RESOURCES.

53.

None of these interests is adequate to justify discrimination against

married persons in same-sex relationships. The first two rationales have nothing to do

with any federal interest and simply reflect a belief that same-sex couples should not be

permitted to marry.

54.

The first claimed federal “interest” in “defending” “traditional

heterosexual marriage” simply restates the government’s intent to discriminate against

same-sex couples and provides no independent justification for the government’s

discriminatory action. The federal government has long accepted state determinations of

marital status, even in the face of changes in marriage licensing by the states. The only

state-licensed marriages it categorically refuses to respect are those of same-sex couples.

In short, this “interest” repeats the distinction drawn by DOMA, 1 U.S.C. § 7, that is,

between married couples of the same sex and married couples of different sexes, but it

does not explain it.

55.

The second claimed federal interest in “morality” is another reframing

of Congress’s disapproval of gay men and lesbians. Discrimination for its own sake is

not a legitimate purpose upon which disadvantageous classifications may be imposed.

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Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 14 of 92

56.

The third claimed interest in “protecting state sovereignty” is actually

subverted by DOMA, 1 U.S.C. § 7, not advanced by it. Congress contravened inherent

constitutional principles of federalism and failed to honor our nation’s system of dual

sovereignty in enacting DOMA, 1 U.S.C. § 7, because it is the states, and not the federal

government, that regulate marriage and determine family status. Congress did not

“protect” state sovereignty in enacting DOMA, 1 U.S.C. § 7, since it dishonored the

sovereignty of the states that license or recognize marriages of same-sex couples.

57.

As to the fourth claimed interest, while the public fisc is always a

matter of concern, it is not a legitimate interest in the context of Congressionally

provided protections and responsibilities for spouses and families. Congress has yet to

identify a reason why gay and lesbian individuals who have met their obligations as

taxpaying citizens and who are married to someone of the same sex must be denied

protections available to persons who are married to someone of a different sex. Singling

out same-sex couples who are married among all married persons is simply an expression

of the intent to discriminate against gay people.

58.

At root, DOMA, 1 U.S.C. § 7, is motivated by disapproval of gay men

and lesbians and their relationships, an illegitimate federal interest.

Facts Particular To Individual Plaintiffs

Plaintiffs Nancy Gill and Marcelle Letourneau

59.

Plaintiff Nancy Gill (“Nancy”) is, and was at all relevant times, an

employee of the defendant, United States Postal Service (“Postal Service”). Nancy has

worked for the Postal Service since 1987.

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Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 15 of 92

60.

Nancy met her spouse, plaintiff Marcelle Letourneau (“Marcelle”), in

1978, and they have been a committed couple since 1980.

61.

Marcelle has been employed in administrative capacities by a nursing

services provider in Massachusetts for more than 25 years. She also works as an

independent medical transcriptionist.

62.

After 12 years together, Nancy and Marcelle had their first child, a

daughter, now age 16. A son, now age 9, followed. Nancy worked the night shift at the

Post Office for many years to be available to her children during the day. Both children

have hyphenated last names with the surnames of their two parents.

63.

Nancy and Marcelle live in a home they jointly own in Bridgewater,

Massachusetts, together with their children, who attend public school.

64.

After 24 years together, on Friday, May 21, 2004, Nancy and Marcelle

were married by a justice of the peace in Brockton, Massachusetts in strict and complete

accordance with Massachusetts law. They then went away together for the weekend with

their family to celebrate.

65.

Although Nancy and Marcelle married to solemnize their longstanding

commitment to each other and their family, they also looked forward to the spousal

benefits they expected to receive from the Postal Service.

66.

As an employee of the United States Postal Service, Nancy is enrolled

in the Federal Employees Health Benefits Program (“FEHB”).

67.

Nancy has been enrolled in FEHB with a “Self and Family” Plan since

the birth of her and Marcelle’s daughter in January 1993. The plan now covers herself

and their two children.

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68.

According to the FEHB Handbook, “Self and Family” enrollment is

described as follows:

Self and Family

A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.

You may enroll for self and family coverage before you have any eligible family members. Then, a new eligible family member (such as a newborn child or a new spouse) will be automatically covered by your family enrollment from the date he/she becomes a family member. When a new family member is added to your existing self and family enrollment, you do not have to complete a new SF 2809 or other appropriate request, but your carrier may ask you for information about your new family member. You will send the requested information directly to the carrier. Exception: if you want to add a foster child to your coverage, you must provide eligibility information to your employing office.

FEHB Handbook, Enrollment, Types of Enrollment (emphasis supplied).

69.

According to 5 U.S.C. § 8901(5), “member of family” is defined, in

part, to “mean[] the spouse of an employee or annuitant and an unmarried child under 22

years of age ….”

70.

Although Marcelle should have been automatically covered by

Nancy’s Self and Family Plan upon Nancy and Marcelle’s marriage on May 21, 2004,

Nancy took the additional, permitted step of submitting a standard SF 2809 form to her

employing office, dated May 24, 2004, listing as her family members her children and

her spouse. This form was submitted on the Monday following Nancy and Marcelle’s

marriage the previous Friday.

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71.

Nancy’s SF 2809 form was received in her employing office on May

24, 2004.

72.

On May 25, 2004, Nancy had a conversation with her Human

Resources Manager, Ann Mailloux, concerning her rights to benefits coverage for her

spouse, Marcelle.

73.

By letter dated June 4, 2004, the United States Postal Service formally

advised Nancy “that the Postal Service is unable to provide you with benefit coverage for

your partner [sic].” Letter from Ann Mailloux, Manager, Human Resources, USPS,

Southeast New England Performance Cluster, to Nancy M. Gill (June 4, 2004).

74.

The June 4, 2004, letter provided the following reasoning:

The Postal Service is bound by rules and regulations issued by the Office of Personnel Management and applicable federal law (as opposed to state law). Same-sex partners are not considered eligible under Federal Employees Health Benefits (FEHB) or Federal Employees Group Life Insurance (FEGLI) in that federal law defines family members (which are covered) as a spouse and an unmarried dependent child under age 22. Public Law 104-199, Defense of Marriage Act, states, that the word ‘marriage’ means 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.

75.

Nancy and Marcelle were shocked that Marcelle was denied benefits

under Nancy’s plan. On June 7, 2004, Nancy filed a request for pre-complaint

counseling under the Equal Employment Opportunity Process and was advised to

complete and return PS Form 2564-A within 10 days.

76.

Nancy completed PS Form 2564-A within 10 days, asserting that she

had not been treated equally and had been “discriminated against for being a lesbian.” PS

Form 2654-A, p. 1, Section B. Specifically, she stated: “Anyone who has gotten married

while employed by the US Postal Service has the right to put their new spouse on their

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Health Insurance. That new spouse is entitled by marriage to a host of benefits which my

spouse is denied. How can this be called anything but discrimination?” PS Form 2654-

A, p. 2, Section D.

77.

For a resolution to her pre-complaint, Nancy stated: “Allow me to

have the same rights as my co-workers who are married.” PS Form 2654-A, p. 2, Section

F.

78.

By letter dated June 21, 2004, USPS NEEO Dispute Resolution

Specialist Debra A. DeSantis corresponded with Nancy to “conclude the pre-complaint

stage of the EEO Complaints Process.” Letter from Debra DeSantis, NEEO Dispute

Resolution Specialist, USPS, Southeast New England Performance Cluster, to Nancy Gill

(June 21, 2004).

79.

The June 21, 2004 letter apprised Nancy that: (1) benefits are

administered by the Office of Personnel Management, which relies on Public Law 104-

199, i.e., DOMA, 1 U.S.C. § 7, to exclude the marriages of same-sex couples from the

requested benefit; and (2) as to “the factors of discrimination as depicted [sic] in the Civil

Rights Act, Title VII does not include sexual orientation as a protected class.”

80.

On June 29, 2004, Nancy signed and filed an “EEO Complaint of

Discrimination in the Postal Service,” seeking “the same rights and benefits and

responsibilities as any one of my co-workers who are also married.” Case No. 1B-024-

0007-04; Complaint, Item No. 17.

81.

By decision dated July 20, 2004, Nancy’s Complaint in Case No. 1B-

024-007-04 was dismissed for failure to state a claim because discrimination based on

sexual orientation “is not actionable under EEOC Regulations.”

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82.

Because the Office of Personnel Management, following DOMA, 1

U.S.C. § 7, would not permit Nancy to cover Marcelle through her family health

insurance, Nancy and Marcelle had to purchase health insurance for Marcelle that would

otherwise have cost nothing, since Nancy already had the “Self and Family” plan.

83.

Because of the extra expense of health insurance for Marcelle, Nancy

again sought to add Marcelle to her FEHB Self and Family Plan, as well as to the

available vision benefit plan (“FEDVIP”) and to her flexible spending account, during the

open enrollment period between November 10, 2008 and December 9, 2008.

84.

Initially, Nancy sought to enroll Marcelle through the PostalEASE

system through her home computer, and then through the PostalEASE Employee Kiosk

at her workplace on Friday, November 21, 2008.

85.

When Nancy attempted to add Marcelle as her spouse for health

insurance and identified Marcelle’s gender as “female,” the system returned a message

that said: “Your gender and the gender selected for your spouse cannot be the same.”

86.

When Nancy attempted to add Marcelle as her spouse for the vision

insurance plan and identified Marcelle’s gender as “female,” the system again returned a

message that said: “Your gender and the gender selected for your spouse cannot be the

same.”

87.

Although PostalEASE allowed Nancy to enter Marcelle on her list of

dependents, when Nancy attempted to “Finish Enrollment,” the system produced an error

message: “Unknown Tran Codes.”

88.

Nancy also received a message from the kiosk system that said: “The

system cannot process a 2809 form for you at this time – You must complete an FEHB

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enrollment through PostalEASE before you can print a completed 2809 Enrollment

Form.”

89.

Despite the refusal of the PostalEASE system to accept her enrollment

request, Nancy persisted by phone and by mail to obtain assistance from her local Human

Resources officer in adding Marcelle to her health and vision benefit plans and flexible

spending account.

90.

Nancy received a response by letter dated December 8, 2008, from

Michelle Palardy, HR Generalist Principal, USPS – SENE District. Letter from Michelle

Palardy, Human Resources General Specialist, USPS—Southeast New England District,

to Nancy Gill (Dec. 8, 2008).

91.

The text of the December 8, 2008, letter stated in its entirety:

This is in response to your inquiry regarding adding your spouse to your health benefits during open season 2009.

After researching the situation, I have found information on the US Office of Personnel Management website (www.opm.gov) that states that same sex partners are not eligible as family members under enrollment in Federal Employees Health Benefits Programs, Federal Employees Dental and Vision Insurance Program, Federal Employees’ Group Life Insurance Program, Federal Flexible Spending Account Program, and Federal Long Term Care Insurance Program.

The Office of Personnel Management sites [sic] Public Law 104199 Defense of Marriage Act. It 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.”

I have attached a copy of the page from the OPM website that states this. I hope that this has been responsive to your concerns in this matter.

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92.

The Office of Personnel Management (“OPM”) website material

attached to the December 8, 2008, letter indicates that it “can be found on the web at the

following url: http://opm.gov/insure/lifeevents/le4a.asp.”

93.

Nancy followed up by writing a letter to the United States Postal

Service HR Shared Services Center in Greensboro, North Carolina to confirm that there

were no further steps she could take to enroll Marcelle for spousal benefits. Letter from

Nancy Gill to Michelle Palardy, Human Resources General Specialist, USPS—Southeast

New England District and Open Enrollment Manager, Shared Services, USPS (Dec. 18,

2008).

94.

By letter dated January 2, 2009, the HR Shared Services Center wrote

to Nancy regarding Reference # H-2583279 and stated: “the information provided to you

by Michelle Palardy is correct.” Letter from USPS, Human Resources Shared Service

Center, Greensborough, N.C., to Nancy Gill (Jan. 2, 2009).

95.

As a result of the United States Postal Service’s application of DOMA,

1 U.S.C. § 7, Marcelle has been denied both health and vision insurance as well as all

other employment-related benefits available to the spouses of United States Postal

Service employees.

96.

As a result of the United States Postal Service’s application of DOMA,

1 U.S.C. § 7, Nancy has been prohibited from covering Marcelle under her federal

flexible spending account as well as all other employment-related benefits available to

United States Postal Service employees for the support of their spouses.

97.

As a result of this exclusion from benefits, Marcelle and Nancy have

suffered specific and concrete financial harms. Spousal health insurance and vision

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coverage are valuable benefits of employment. Marcelle and Nancy have been forced to buy health insurance for Marcelle as if they were not married, to the financial detriment of Marcelle, Nancy, and their children. Nancy and Marcelle have also been denied, among other things, the financial benefits that accrue to a household from the use of a flexible spending account for the medical expenses of a spouse.

Plaintiffs Martin Koski and James Fitzgerald

98.

Plaintiff Martin Koski (“Martin”) is a retired employee of the Social

Security Administration.

99.

Martin and his spouse James Fitzgerald (“Jim”) have been in a

committed relationship for over 33 years.

100.

Jim currently works as a counselor’s aide at an alcohol treatment

center.

101.

Martin worked as a claims representative for the Social Security

Administration from 1968 until 1979 in Boston.

102.

In 1979, Martin and Jim decided to move to Florida together, and so

Martin left his job at the Social Security Administration.

103.

In Florida, Martin worked as a travel agent, while he and Jim together

took care of Martin’s father, who was dying of cancer. Martin’s father passed away in

1994, with Martin and Jim at his side.

104.

In 1995, Martin and Jim returned to Boston. Martin was welcomed

back to his prior position as a claims representative for the Social Security

Administration, where he worked until his retirement in 2005.

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105.

As a former employee and qualified annuitant of the Social Security

Administration, Martin is enrolled in the FEHB.

106.

For some time prior to October 5, 2007, Martin was enrolled in FEHB

under a “Self-Only” plan, covering, as the name suggests, himself only.

107.

Pursuant to 5 U.S.C. § 8905, 5 C.F.R. § 890.306(g)(1) and the FEHB

handbook, an FEHB enrollee is allowed to change his enrollment from “Self Only” to

“Self and Family” beginning 31 days before and ending 60 days after a change in family

status, which includes a change in marital status.

108.

According to the FEHB Handbook, “Self and Family” enrollment is

described as follows:

Self and Family

A self and family enrollment provides benefits for you and your eligible family members. All of your eligible family members are automatically covered, even if you didn’t list them on your Health Benefits Election Form (SF 2809) or other appropriate request. You cannot exclude any eligible family member and you cannot provide coverage for anyone who is not an eligible family member.

FEHB Handbook, Enrollment, Types of Enrollment.

109.

According to 5 U.S.C. § 8901(5), “member of family” is defined, in

part, to “mean[] the spouse of an employee or annuitant and an unmarried child under 22

years of age . . . .”

110.

After more than 30 years together, Martin and Jim married on

September 10, 2007, in Bourne, Massachusetts, in strict and complete accordance with

Massachusetts law. They married because of their longstanding commitment to one

another and their belief that marriage would provide them with additional legal security.

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111.

On October 5, 2007, within the 60-day period in which to request a

change in enrollment, Martin sent OPM a request to change his enrollment for health

benefits from “Self-Only” to “Self and Family” and included his Massachusetts marriage

certificate as proof of marriage.

112.

By letter dated January 15, 2008, Martin received a denial of his

request from the Retirement Benefits Branch of OPM. Letter from Tianna Butler,

Annuitant Insurance Specialist, Retirement Benefits Branch, OPM, to Martin A. Koski

(Jan. 15, 2008).

113.

OPM based its denial of Martin’s request for family health insurance

for Jim on DOMA, 1 U.S.C. § 7. In its January 15, 2008 letter, OPM stated:

Coverage under the FEHB Program is limited to certain family members. The FEHB Program is governed by Federal law. Title 5, United States Code, section 8901(5) defines family members as an employee’s or annuitant’s spouse and his or her unmarried dependent children under the age of 22.

Public Law 104-199, the Defense of Marriage Act, states, “In determining the meaning of any Act of Congress, or any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or a wife.”

Based on the FEHB law and the Defense of Marriage Act, OPM has determined that James Fitzgerald is not a recognized qualified dependant and cannot be added to your existing enrollment in the FEHB Program. Therefore, your enrollment will remain as a self only enrollment.

114.

On January 25, 2008, Martin timely requested reconsideration of his

denial. Letter from Martin A. Koski to OPM, Retirement Operations Center, Boyers,

P.A. (Jan. 25, 2008).

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115.

By letter dated July 1, 2008, OPM responded to Martin’s request for

reconsideration and affirmed its original decision to deny Martin’s request to change his

enrollment to “Self and Family” coverage. Letter from Antoinette Vanderhorst, Legal

Administrative Specialist, Disability, Reconsideration and Appeals Group, OPM, to

Martin A. Koski (July 1, 2008).

116.

In its July 1, 2008 denial of Martin’s request for reconsideration, OPM

again relied upon DOMA, 1 U.S.C. § 7:

Because your marriage to James Thomas Fitzgerald does not meet the definition of marriage in accordance with § 7 [DOMA, 1 U.S.C. § 7], we find that he does not qualify as a family member as specified under section 8901(5) of title 5, United States Code. Therefore, we must deny your request to change your FEHB self-only coverage to self and family coverage.

117.

On October 10, 2008, Martin sent a letter to OPM requesting a

survivor annuity benefit for his spouse, Jim, and included a copy of his marriage

certificate as proof of marriage. Letter from Martin A. Koski to OPM, Boyers, P.A. (Oct.

25, 2008).

118.

On November 13, 2008, Martin sent an e-mail to OPM requesting

information about the processing of his request for a survivor annuity benefit. E-mail

from Martin A. Koski to OPM (Nov. 13, 2008, 4:21:30 PM).

119.

On December 9, 2008, OPM responded to Martin’s e-mail informing

him that his request had been logged into the “Post-Retirement Section” in Boyers,

Pennsylvania on October 23, 2008, and was currently being processed. E-mail from

Bambi Bonaddio, Customer Service Specialist, Customer Services Group, OPM, to

Martin A. Koski (Dec. 9, 2008, 10:49 EST).

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120.

By letter dated January 26, 2009, OPM denied Martin’s request for

survivor annuity benefits for Jim, stating that “We do not recognize same sex marriages.

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 and wife.” Letter from Susan Bonefeste, Legal Administrative Specialist,

Post Retirement Section, OPM, to Martin A. Koski (Jan. 26, 2009). The letter informed

Martin of the process for requesting reconsideration of OPM’s denial.

121.

On February 2, 2009, Martin timely requested reconsideration of

OPM’s denial of his request for survivor annuity benefits for Jim. Letter from Martin A.

Koski to OPM, Retirement Operations Center, Boyers, P.A. (Feb. 2, 2009).

122.

As a result of OPM’s application of DOMA, 1 U.S.C. § 7, Jim has

been denied health insurance and survivor annuity benefits available to the spouses of

federal retirees even though he is legally Martin’s spouse under Massachusetts law.

123.

As a result of this exclusion from benefits, Martin and Jim have

suffered specific and concrete financial harms to themselves and to their household. In

particular, Jim has severe asthma that must be controlled with multiple medications. Jim

has been forced, among other things, to purchase health insurance for himself with

coverage inferior to that of the federal employee health insurance benefit and at a cost

greater than the cost of the federal spousal health insurance coverage. His deductibles

and prescription medication co-payments are higher than they would be if he had access

to the FEHB insurance.

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Plaintiff Dean Hara

124.

Plaintiff Dean Hara (“Dean”) is a financial advisor working as an

independent contractor with a financial services company.

125.

Dean is the widowed spouse of former United States Congressman

Gerry E. Studds (“Congressman Studds” or “Gerry”).

126.

Congressman Studds served in Congress, as a Representative from

Massachusetts, for 24 years from his first election in November 1972 until he did not

seek re-election in 1996 and his retirement in January 1997.

127.

Dean moved to Washington, D.C. in 1979 for school and then

employment. He and Gerry first met through mutual acquaintances in the early 1980s,

and they crossed paths often in their mutual neighborhood of Dupont Circle.

128.

In January 1991, Gerry and Dean began a dating relationship. Eight

months later, on Labor Day, Gerry proposed to Dean, asking him to accept and return a

commitment for life. Shortly thereafter, Dean accepted, and they were a committed

couple from that day in 1991 forward.

129.

Throughout Congressman Studds’s terms from 1991 through January

1997, Dean attended countless public, Congressional, and political events as the

Congressman’s recognized spouse.

130.

Dean became a member of the Democratic Spouses organization. He

continues to belong to that organization to this day.

131.

Dean received and carried the official Congressional Spouse Photo

Identification card listing him as the spouse of Congressman Studds, 10th MA, which

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was issued by the Sergeant at Arms of the U.S. House of Representatives in January

1995.

132.

Upon Gerry’s retirement from federal employment, he and Dean

moved to Massachusetts, splitting time between Provincetown, Massachusetts, which was

in Gerry’s congressional district, and Boston, Massachusetts until 2002, when Boston

became their sole residence.

133.

After 13 years as a committed couple, on May 24, 2004, Gerry and

Dean were married in Boston, Massachusetts, in strict and complete accordance with

Massachusetts law. They married because the law finally allowed them to formalize the

vow of lifetime commitment they had made in 1991.

134.

On October 3, 2006, Gerry never returned home from his morning

walk with their dog, Bonnie, as he had suddenly lost consciousness and collapsed

because of a blood clot in his lung.

135.

Initially, Gerry’s condition improved in the hospital but then worsened

unexpectedly on Friday, October 13, 2006. He died in the early morning hours of

Saturday, October 14, 2006, at Boston Medical Center, leaving Dean as his surviving

spouse.

136.

At the time of Congressman Studds’s death, he was insured under the

Social Security program, and he and Dean had been living together in the same

household in Boston, Massachusetts.

137.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

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death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death.

138.

Shortly after Gerry’s death, Dean applied for this Social Security

lump-sum death benefit.

139.

By letter dated November 14, 2006, the Social Security Administration

issued a Notice of Disapproved Claim to Dean, stating in pertinent part:

We have considered your application for Social Security benefits.

Since the Defense of Marriage Act prohibits SSA from finding that you and the insured were married for benefit purposes, you are not eligible for the lump sum death payment.

Other Social Security Benefits

You do not qualify for any other Social Security benefits based on the application you filed. In the future, if you think you may be entitled to benefits, you will need to apply again.

If You Disagree With The Decision

If you disagree with the decision, you have the right to appeal….

Letter from Judy Bernstein, Field Office Manager, Social Security Administration,

Boston Office, to Dean T. Hara (Nov. 14, 2006).

140.

As a result of the actions of the Social Security Administration and

solely because of the existence and operation of DOMA, 1 U.S.C. § 7, Dean, Gerry’s

surviving legal spouse under Massachusetts law, has been denied the $255 death benefit

otherwise available to him under 42 U.S.C. § 402(i).

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141.

In 2006, Dean made an explicit and formal request to SSA, and he

received an explicit and formal notice from the SSA denying him the right and

opportunity to receive a lump-sum death benefit following the death of his legal spouse.

142.

Based upon his 27 years of federal service, including 24 years as a

Congressman from Massachusetts, Congressman Studds was a participant in the Civil

Service Retirement System (“CSRS”).

143.

As part of his retirement planning, on May 17, 1993, Gerry designated

Dean as the beneficiary of any “lump sum benefit” payable upon his death under 5

U.S.C. § 8342 and filed that designation with OPM. Standard Form No. 2808 (May 17,

1993).

144.

On an immediate retirement application dated September 18, 1996,

Congressman Studds indicated that he was unmarried, and he elected an unreduced

annuity based on 27 years of total federal service. Standard Form No. 2801 (Sept. 18,

1996). Congressman Studds had no alternative, because no state had yet recognized his

and Dean’s right to marry.

145.

While Congressman Studds and Dean married in 2004, DOMA, 1

U.S.C. § 7, still prevented Congressman Studds from electing a retirement annuity that

provided a spousal annuity for Dean.

146.

Congressman Studds received retirement annuity benefits from his

January 2, 1997, retirement until his death. These benefits were a meaningful part of the

household income that he and Dean relied upon.

147.

On March 1, 2007, Dean applied for death benefits, both as Gerry’s

widower and as executor of Gerry’s estate, by submitting an “Application for Death

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Benefits – Civil Service Retirement System” on Standard Form 2800 (Revised May

2000).

148.

OPM issued a check, dated March 29, 2007, to Dean T. Hara in the

amount of $4,141.38 and with the notation “78 CSF LUMPSUM.” This represented the

lump-sum benefit remaining in Congressman Studds’s retirement account.

149.

OPM’s communication to Dean that accompanied the March 29, 2007,

check included the statement: “You are entitled to a lump sum payment because of the

death of a former employee.”

150.

OPM’s communication to Dean that accompanied the March 29, 2007

check also included, under “Remarks,” the following:

WE REGRET TO INFORM YOU THAT YOUR LATE SPOUSE DID NOT ELECT SURVIVOR BENEFITS. THIS MONEY IS ALL YOU WILL RECEIVE FROM RETIREMENT.

151.

By letter dated May 30, 2007, OPM advised Dean that it was denying

his claim for a monthly survivor annuity. For its reasons, OPM’s letter states, in its

entirety: “Our records show that your spouse did not notify our office of your marriage

and no election was made to provide a survivor annuity for you.” Letter from Brenda

Hughes, Legal Administrative Specialist, Retirement Operations Center, OPM, to Dean

T. Hara (May 30, 2007).

152.

Dean requested reconsideration of OPM’s decision by letter dated June

28, 2007. Letter from Dean T. Hara to OPM Retirement Operations Center (June 28,

2007).

153.

By letter dated October 24, 2007, OPM denied Dean’s request for

reconsideration, reiterating its position that no benefits were available to Dean because

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Congressman Studds had not elected a survivor annuity for Dean. Letter from Joseph E.

Miller, Jr., Legal Administrative Specialist, OPM, to Dean T. Hara (Oct. 24, 2007).

154.

Dean filed a Notice of Appeal to the Merit Systems Protection Board

(“MSPB”) by letter dated November 27, 2007. Letter from Dean T. Hara to Regional

Director, Northeastern Regional Office, MSPB, Philadelphia, P.A. (Nov. 27, 2007).

155.

On February 26, 2008, OPM rescinded its final decision of October 24,

2007, indicating that a new reconsideration decision would be issued in the future. As a

result, Dean’s original MSPB appeal was dismissed without prejudice.

156.

By letter dated June 24, 2008, OPM issued a new reconsideration

decision and again reiterated its denial of a survivor annuity to Dean while asserting two

grounds for denial:

You have not established that Representative Studds elected a survivor annuity benefit for you.

A same-sex marriage in any jurisdiction cannot be recognized for benefit entitlement purposes under any Federal statute administered by OPM. Therefore, even if Representative Studds had elected a survivor benefit for you, under 1 U.S.C. §7, we could not approve your application for a survivor annuity.

Letter from Joseph E. Miller, Jr., Legal Administrative Specialist, OPM, to Dean T.

Hara (June 24, 2008).

157.

Dean timely re-filed an appeal to the MSPB based upon OPM’s new

reconsideration decision.

158.

Following a one-day hearing in October 2008, Chief Administrative

Judge William L. Boulden issued a decision on Dean’s appeal on December 17, 2008.

Dean T. Hara v. Office of Personnel Management (CSF3067396), Docket No. PH-0831-

08-0099-I-2.

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159.

Judge Boulden’s decision determined that Dean was not legally

eligible for a federal spousal survivor annuity for the sole reason that, by virtue of

DOMA, 1 U.S.C.§ 7, Dean and Gerry did not have a “marriage” and Dean was not a

“spouse” for purposes of the relevant statutes governing federal spousal survivor

annuities.

160.

Judge Boulden also determined that it was beyond the purview of the

MSPB to determine the constitutionality of 1 U.S.C. § 7.

161.

Judge Boulden also determined that Congressman Studds was not

subject to a two-year election requirement for naming Dean as a survivor annuitant

because “pursuant to DOMA, [Dean] was not ‘married’ to Congressman Studds and they

were not ‘spouses.’”

162.

Judge Boulden also found that Congressman Studds intended for Dean

to have the benefit of a spousal survivor annuity if that was legally possible. As a result,

even if an election by Congressman Studds were required, Judge Boulden determined

that the election would be considered to have been timely made and that OPM would be

estopped from relying on any asserted failure of election.

163.

Judge Boulden’s Initial Decision of December 17, 2008, became final

on January 21, 2009.

164.

As a result of the actions of OPM, which were based solely on the

existence and operation of DOMA, 1 U.S.C. § 7, Dean has been denied a spousal

survivor annuity available to the surviving spouses of eligible federal employees within

the CSRS system who, like Congressman Studds, intended to create such a spousal

annuity for their spouses.

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165.

As a result of this exclusion from the spousal survivor annuity, Dean

has suffered substantial ongoing financial harm.

166.

Because the MSPB record demonstrated that Congressman Studds

intended to provide Dean with all the federal employment-related benefits available to a

spouse, Dean applied to OPM for federal health insurance benefits available to a

surviving spouse by Express Mail letter dated January 20, 2009. Letter from Dean T.

Hara to Retirement Operations Center, OPM (Jan. 20, 2009).

167.

That letter dated January 20, 2009, was delivered to the OPM

Retirement Operations Center on January 21, 2009.

168.

Dean presented to OPM his claim for federal health insurance benefits

as the surviving spouse of Congressman Studds, who intended to establish the availability

of such insurance benefit for Dean.

169.

Based upon Dean’s prior interactions with OPM, as well as the

interactions of others with OPM, including plaintiff Nancy Gill and Martin Koski, it is

clear that OPM will deny Dean’s request for health insurance coverage and cite DOMA,

1 U.S.C. § 7, as OPM has done to date both privately and publicly in a variety of settings.

Plaintiffs Mary Ritchie and Kathleen Bush

170.

Plaintiff Mary Ritchie (“Mary”) is a State Police Sergeant with the

Commonwealth of Massachusetts. Mary has been with the State Police for more than 20

years, and she now specializes in supervising major crime scenes and crime scene

forensics.

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171.

Plaintiff Kathleen Bush (“Kathy”) is a homemaker and an active

volunteer in the local school system.

172.

Mary and Kathy met through a mutual friend, at a Christmas party in

1989. They have been a committed couple for 19 years, since 1990.

173.

Mary and Kathy have two school-age children. Their sons are 7 and

10 years old, and both have hyphenated last names using their parents’ surnames.

174.

When their first son was born, in 1999, Mary took a parenting leave to

care for him. Later, Mary and Kathy reached a joint decision that Kathy would become a

stay-at-home parent. Prior to that time, Kathy had been successfully employed in sales

and marketing for an established medical journal.

175.

After 14 years together as a committed couple, Mary and Kathy were

married at their home in Framingham on May 22, 2004 in strict and complete accordance

with Massachusetts law. They married because “marriage” is what best described their

family to each of them. Mary also expected to protect their family through employment

benefits that their marriage would make available.

176.

Mary, Kathy and their two sons live together in a home that Mary and

Kathy jointly own in Framingham. Both their sons attend the local public schools.

Kathy serves on the Executive Board of the Parent Teacher Organization.

177.

Kathy and Mary were born and raised in Framingham and Boston,

respectively, and their family is very close with each other’s large extended families.

178.

As a legally married couple, Mary and Kathy file their state income

tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They

have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.

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179.

Despite their legal marital status, and the requirement that they file

their state income tax returns as Married with the Massachusetts Department of Revenue,

they have not filed their annual federal income tax returns as Married Filing Jointly

because of the federal government’s non-recognition of their marriage pursuant to

DOMA, 1 U.S.C. § 7.

180.

Each year since their marriage in 2004, Mary has filed and paid federal

taxes using the “Head of Household” filing status because of DOMA, 1 U.S.C. § 7.

Kathy has had no income and thus has not been required to file any federal income tax

return.

181.

Each year since their marriage in 2004, Mary and Kathy have paid

substantially more in federal income taxes as a result of their inability to file as Married

Filing Jointly.

182.

Additionally, for the tax year 2008, Mary sought to contribute money

toward a spousal Individual Retirement Account (“IRA”) for the benefit of Kathy, just as

any working spouse can do for a spouse who does not earn income. Due to their inability

to file federal income tax returns as Married Filing Jointly, Mary cannot take the

allowable tax deduction for her contribution to Kathy’s IRA account, even though other

working spouses can take the same deduction.

183.

For the tax year 2004, Mary and Kathy paid $1,054 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

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184.

For the tax year 2005, Mary and Kathy paid $2,703 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

185.

For the tax year 2006, Mary and Kathy paid $4,390 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

186.

For the tax year 2007, Mary and Kathy paid $ 6,371 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

187.

Additionally, Mary is and has been unable to contribute on a tax-

advantaged basis to Kathy’s IRA as is ordinarily permitted for spouses under Section

219(c) of the Internal Revenue Code, as amended (“I.R.C.”).

188.

Having timely paid all their federal income taxes in full, Mary and

Kathy later submitted amended federal income tax returns, on IRS Form 1040X,

changing their filing status from Mary filing alone as Head of Household to Mary and

Kathy filing together as Married Filing Jointly.

189.

On April 13, 2008, Mary and Kathy submitted an amended federal

income tax return to the IRS on IRS Form 1040X for the tax year 2004. The 2004

amended federal income tax return included a claim for refund in the amount of $1,054.

190.

Mary and Kathy attached to the IRS Form 1040X Amended Return the

Form 8275, Disclosure Statement and the 8275-R, Regulation Disclosure Statement

explaining their changes to the originally filed federal income tax return. In its entirety,

the Attachment states:

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Attachment To Form 1040X, Part II, Explanation of Changes Form 8275, Disclosure Statement Form 8275-R, Regulation Disclosure Statement 2004 Tax Year

REFUND CLAIM BASED ON THE UNCONSTITUTIONALITY OF THE “DEFENSE OF MARRIAGE ACT”

The taxpayer, Mary E. Ritchie, ID #[###-##-####], a spouse in a same-sex couple, was married under the laws of the Commonwealth of Massachusetts as of December 31, 2004. For the tax year of this amended return, the taxpayer filed a joint Massachusetts income tax return with her spouse as a married couple. However, in accordance with the federal law known as the Defense of Marriage Act (“DOMA”), the taxpayer filed an individual, federal income tax return as though she was unmarried. The taxpayer believes that being required to file as though she is unmarried amounts to unequal treatment compared to other married persons in Massachusetts. The taxpayer believes that her marriage, which is valid under Massachusetts law, should be respected for federal tax purposes, just like the Massachusetts marriages of heterosexual couples. Although this position is contrary to DOMA, the taxpayer believes that DOMA is unconstitutional and that she should be allowed to file this amended joint return with her spouse and receive the refund shown herein.

In particular, if the taxpayer were able to file as married filing jointly, such a filing status would affect the following adjustments:

The federal tax as decreased from $5,331 to $4,277. The taxpayer previously paid $5,331 in federal income tax in her original returnfor this taxable year. As a result of these adjustments, the amount of overpayment is $1,054.

191.

With each successive amended federal income tax return and refund

claim filed, Mary and Kathy included the same Explanation of Changes and Disclosure

Statement Attachment described in Paragraph 190, except that the tax year, amount of

federal income tax paid and amount of refund claimed were adjusted to reflect the proper

tax year.

192.

Correspondence from the IRS confirms that the 2004 amended federal

income tax return and accompanying refund claim were timely received on April 15,

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2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 17, 2008).

193.

In a reply dated July 17, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2004. Id. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[t]he Federal Government does not recognize same sex marriages and

differs with Massachusetts on this point.” Id.

194.

On April 13, 2008, Mary and Kathy submitted to the IRS an amended

federal income tax return on IRS Form 1040X for the tax year 2005. The amended

federal income tax return included a claim for refund in the amount of $2,703.

195.

Correspondence from the IRS confirms that the 2005 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 18, 2008).

196.

In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2005. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[t]he Federal Government does not recognize same sex marriages.” Id.

197.

On April 13, 2008, Mary and Kathy submitted to the IRS an amended

federal income tax return on IRS Form 1040X for the tax year 2006. The amended

federal income tax return included a claim for refund in the amount of $4,390.

198.

Correspondence from the IRS confirms that the 2006 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Mary E. Ritchie (July 18, 2008).

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199.

In a reply dated July 18, 2008, the IRS disallowed Mary and Kathy’s

refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your Claim,” the

IRS stated that: “[c]urrent federal law does not recognize same sex marriage even if

legally constituted by a sovereign state.” Id.

200.

Each disallowance that Mary and Kathy received from the IRS notified

them of their right to file suit in the United States District Court within two years from

the date of the disallowance letters.

201.

As a result of these IRS disallowances, and solely because of the

existence and operation of DOMA, 1 U.S.C. § 7, Mary and Kathy have suffered specific

and concrete financial harms to themselves and to their household. Specifically, the

2004, 2005 and 2006 disallowances have forced Mary and Kathy to pay $8,147 more in

federal income taxes than a similarly situated different-sex married couple would have

paid for those same tax years.

202.

The additional money that Mary and Kathy had to pay in federal

income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings or toward

supporting their two young sons.

203.

Moreover, the specific and concrete financial harms to Mary and

Kathy’s household continue to grow with each additional year that DOMA, 1 U.S.C. § 7,

operates to bar the IRS from recognizing them as a married couple entitled to the Married

Filing Jointly status.

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Plaintiffs Melba Abreu and Beatrice Hernandez

204.

Plaintiff Melba Abreu (“Melba”) is the chief financial officer for a

non-profit organization located in Boston, Massachusetts.

205.

Plaintiff Beatrice Hernandez (“Beatrice”) is in the process of founding

her own web design practice. The company is presently in its initial stages and generates

no income. Beatrice also is a writer and is currently in the process of writing two books.

206.

Melba and Beatrice met in Miami in May 1987. They were both living

and working in Miami at the time. Melba and Beatrice’s connection was immediate, and,

consequently, they became a committed couple after a short period of time.

207.

Shortly after they began their relationship, Melba and Beatrice moved

together to Brooklyn, New York because Beatrice was accepted to a degree program at

New York University. In November 1987, the day they moved into their first apartment

in Brooklyn, Melba and Beatrice celebrated the beginning of their lives together by

sharing a bottle of wine while unpacking a box of new dishes for their new home. In the

simplicity of that day they knew that their commitment was their bond, and that together

they would bear witness to each other’s lives. They view this as the beginning of their

marriage.

208.

Melba and Beatrice have been a devoted couple for more than 21

years, since 1987.

209.

On May 20, 2004, after 17 years as a committed couple, Melba and

Beatrice were married in strict and complete accordance with Massachusetts law because

they finally had the opportunity to affirm under law what they had long ago declared in

their hearts.

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210.

Melba and Beatrice live in Boston, Massachusetts. They dream of the

day they can own a home and build a business together

211.

As a legally married couple, Melba and Beatrice file their state income

tax returns with the Commonwealth of Massachusetts as Married Filing Jointly. They

have filed their state income tax returns as Married Filing Jointly since the 2004 tax year.

212.

Despite their legal marital status, and the requirement that they file

their state income tax returns as Married with the Massachusetts Department of Revenue,

they have not filed their annual federal income tax returns as Married Filing Jointly

because of the federal government’s non-recognition of their marriage pursuant to

DOMA, 1 U.S.C. § 7.

213.

Each year since their marriage in 2004, Melba has filed and paid

federal income tax returns using the Single filing status because of DOMA, 1 U.S.C. § 7.

Beatrice has had no income and thus has not been required to file any federal income tax

return.

214.

Each year since their marriage in 2004, Melba and Beatrice have paid

substantially more in federal income tax as a result of their inability to file as Married

Filing Jointly.

215.

In the tax year 2004, Melba and Beatrice paid $4,687 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

216.

For the tax year 2005, Melba and Beatrice paid $3,785 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

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217.

For the tax year 2006, Melba and Beatrice paid $5,546 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

218.

For the tax year 2007, Melba and Beatrice paid $5,697 more in federal

income tax than they would have paid had they been permitted to file as Married Filing

Jointly.

219.

Having timely paid all their federal income taxes in full, Melba and

Beatrice later submitted amended federal tax returns, on IRS Form 1040X, changing their

filing status from Melba filing alone as Single to Melba and Beatrice filing together as

Married Filing Jointly.

220.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2004. The 2004

amended federal income tax return included a claim for refund in the amount of $4,687.

221.

With their 2004 amended federal income tax return and refund claim,

Melba and Beatrice attached the same Form 8275, Disclosure Statement and 8275-R,

Regulation Disclosure Statement described in Paragraph 190, in order to explain their

changes to the originally filed federal income tax return. Melba’s and Beatrice’s

Explanation of Changes, Form 8275 Disclosure Statement and Form 8275-R, Regulation

Disclosure Statement differs from that described in Paragraph 190 only insofar as it

identifies different taxpayers, a different amount of federal income tax paid, and a

different amount of refund claimed.

222.

With each successive amended federal income tax return and refund

claim filed, Melba and Beatrice included the same Explanation of Changes and

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Disclosure Statement Attachment described in Paragraph 190 and Paragraph 221, except

that the tax year, amount of federal income tax paid, and amount of refund claimed were

adjusted to reflect the proper tax year.

223.

Correspondence from the IRS confirms that the 2004 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008.

224.

In a reply dated June 20, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2004. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.”

Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover, M.A., to

Melba Abreu (June 20, 2008).

225.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2005. The

amended federal income tax return included a claim for refund in the amount of $3,785.

226.

Correspondence from the IRS confirms that the 2005 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Melba Abreu (June 30, 2008).

227.

In a reply dated June 30, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2005. Id. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “Same sex marriages are not recognized at the Federal level.”

Id.

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228.

On April 14, 2008, Melba and Beatrice submitted to the IRS an

amended federal income tax return on IRS Form 1040X for the tax year 2006. The

amended federal income tax return included a claim for refund in the amount of $ 5,546.

229.

Correspondence from the IRS confirms that the 2006 amended federal

income tax return and accompanying refund claim were timely received on April 15,

2008. Letter from P.J. Bazick, Field Director, Accounts Management, IRS, Andover,

M.A., to Melba C. Abreu (June 30, 2008).

230.

In a reply dated June 30, 2008, the IRS disallowed Melba and

Beatrice’s refund claim for 2006. Id. Under the heading “Why We Cannot Allow Your

Claim,” the IRS stated that: “same sex marriages are not recognized at the Federal level.”

Id.

231.

Each disallowance letter that Melba and Beatrice received from the

IRS notified them of their right to file suit on their claims to recover federal income tax in

the United States District Court within two years from the date of the disallowance

letters.

232.

As a result of these IRS disallowances, and solely because of the

existence and operation of DOMA, 1 U.S.C. § 7, Melba and Beatrice have suffered

specific and concrete financial harms to themselves and to their household. Specifically,

the 2004, 2005 and 2006 disallowances have forced Melba and Beatrice to pay $14,018

more in federal income taxes than a similarly situated married couple would have paid for

those same tax years.

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233.

The additional money Melba and Beatrice had to pay in federal

income taxes because of DOMA, 1 U.S.C. § 7, could have gone into savings for Melba

and Beatrice’s future or provided for the start-up expenses of Beatrice’s practice.

234.

Moreover, the specific and concrete financial harms to Melba and

Beatrice’s household continue to grow with each additional year that DOMA,

1 U.S.C. § 7, bars the IRS from recognizing them as a married couple entitled to the

Married Filing Jointly status.

Plaintiffs Bette Jo Green and Jo Ann Whitehead

235.

Plaintiff Bette Jo Green (“Bette Jo”) recently retired from a 35-year

career as a Labor and Delivery Nurse at a large, Boston-area hospital. She is almost 67

years old.

236.

Plaintiff Jo Ann Whitehead (“Jo Ann”) is a Community Garden

Educator with a non-profit group in the Boston area. Jo Ann has worked in urban

gardening for more than 10 years and previously worked in public school settings. Jo

Ann is 67 years old.

237.

Jo Ann and Bette Jo met in 1960 and were friends at Manchester

College in Indiana. Jo Ann and Bette Jo graduated from Manchester College in 1964 and

were roommates during their senior year.

238.

After remaining in contact for more than 15 years, a time during which

Bette Jo lived in Massachusetts and Jo Ann remained in Indiana, the two women visited

each other on several occasions and then began a romantic relationship in 1981.

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239.

For more than 27 years, Bette Jo and Jo Ann have been in a committed

relationship and have lived together in Jamaica Plain, Massachusetts, where they are

deeply involved in the community.

240.

Jo Ann and Bette Jo both volunteer in their community and are active

in their Neighborhood Watch. Bette Jo takes their elderly neighbors on shopping trips,

and both Bette Jo and Jo Ann help at programs for local children and youth, including

weekly summer barbecues.

241.

Jo Ann and Bette Jo are both cancer survivors. Jo Ann survived a

difficult fight with bone cancer, but she had to reduce her working hours because of

ongoing fatigue. Bette Jo suffered from both uterine and cervical cancer. Both women

have been cancer free for many years but remain conscious of the risk of recurrence.

242.

Jo Ann and Bette Jo have many supportive family members, primarily

in the Midwest, where they make annual visits to spend time with their families.

243.

After 23 years as a committed couple, Bette Jo and Jo Ann married in

the garden at their home in Jamaica Plain, Massachusetts on June 7, 2004, in strict and

complete accordance with Massachusetts law. Friends and neighbors attended their

wedding.

244.

In February 2008, when she was 66 years old, Jo Ann applied for and

began receiving Social Security retirement benefits based on her own Social Security

earnings record. Jo Ann is currently 67 years old and continues to receive Social Security

retirement benefits based on her own earnings record.

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245.

In February 2008, at the age of 65 years and 10 months and in

anticipation of her retirement from nursing, Bette Jo applied for and began receiving

Social Security retirement benefits on her own earnings record.

246.

Social Security offers the option of receiving benefits based on the

earnings record of a spouse. This option is described by the Social Security

Administration (“SSA”) on its website, in relevant part, at

http://www.ssa.gov/pubs/10035.html,:

Spouse’s benefits
A spouse who has not worked or who has low earnings can be entitled to as much as one-half of the retired worker’s full benefit. If you are eligible for both your own retirement benefits and for benefits as a spouse, we always pay your own benefits first. If your benefits as a spouse are higher than your retirement benefits, you will get a combination of benefits equaling the higher spouse benefit.
If you have reached your full retirement age, and are eligible for a spouse’s or ex-spouse’s benefit and your own retirement benefit, you may choose to receive only spouse’s benefits and continue accruing delayed retirement credits on your own Social Security record. You may then file for benefits at a later date and receive a higher monthly benefit based on the effect of delayed retirement credits.

247.

On March 26, 2008, Jo Ann appeared in person at the Boston regional

office of the SSA and applied for the Social Security spousal benefit based on Bette Jo’s

earnings record, because Jo Ann recognized that she would receive a higher monthly

benefit amount if she drew on the spousal benefit rather than solely on her own earnings

record.

248.

If the SSA had permitted Jo Ann to receive spousal benefits based on

Bette Jo’s earnings record, Jo Ann could have delayed her retirement age for purposes of

Social Security. A later Social Security retirement age could increase Jo Ann’s own

retirement benefits.

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249.

In a letter dated April 4, 2008, the SSA denied Jo Ann’s claim for

spousal benefits. Letter from Judy Bernstein, Field Officer Manager, SSA, Boston, M.A.,

to Jo A Whitehead (Apr. 4, 2008). The letter stated that: “Since the Defense of Marriage

Act prohibits SSA from finding that your [sic] and the insured were married for benefit

purposes, you are not eligible for Spouse’s Benefits.” Id.

250.

Jo Ann filed a timely Request for Reconsideration on May 19, 2008.

Form SSA-561-U2 (9-2007) ef (9-2007) (May, 19, 2008). In her Request, she wrote: “I

am appealing because I should receive the spousal retirement benefit. I have been

married under Massachusetts law since June 7, 2004. Since DOMA [1 U.S.C. § 7] blocks

recognition of my marital status/marriage and it treats me differently from other married

people in Massachusetts, I believe DOMA [1 U.S.C. § 7] is unconstitutional.” Id.

251.

The SSA did not respond to Jo Ann’s Request for Reconsideration

until January 17, 2009, Letter from Phyllis M. Smith, Assistant Regional Commissioner,

Great Lakes Processing Center Operations, SSA, Chicago, I.L., to Jo Ann Whitehead

(Jan. 17, 2009), and then did so only after Jo Ann sought the assistance of one of her

Senators. Letter from Edward M. Kennedy, United States Senator, Boston, M.A., to Jo

Ann Whitehead (Nov. 10, 2008). Eight months elapsed between when Jo Ann filed her

Request for Reconsideration and when the SSA finally responded with a denial.

252.

In the SSA’s written denial of Jo Ann’s Request for Reconsideration

dated January 17, 2009, it stated that it looks to the laws of the applicant’s state of

residence in determining marital status. Letter from Phyllis M. Smith to Jo Ann

Whitehead (Jan. 17, 2009). It further noted that “[o]n May 17, 2004, Massachusetts

became the first state to legalize same-sex marriages.” Id.

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253.

However, the SSA’s denial letter went on to cite DOMA, 1 U.S.C. § 7,

for the proposition that marriage for federal purposes means only a legal union between

one man and one woman as husband and wife and stated that therefore: “for all benefit

purposes, SSA does not recognize such individual as the spouse of the [number holder.]”

Id.

254.

On February 2, 2009, Jo Ann went to her local SSA office in Roxbury,

Massachusetts and requested, in writing, the Expedited Appeals Process (“EAP”). Letter

from Jo Ann Whitehead to SSA, Roxbury, M.A., (Feb. 2, 2009). She has yet to receive a

response to her EAP request.

255.

Jo Ann made an explicit and formal request for benefits in 2008, and

in 2009, Jo Ann received explicit and formal notice from SSA denying her request.

256.

Jo Ann and Bette Jo have suffered specific and concrete financial harm

as a result of the denial of spousal benefits. In addition to the harm from the denial of the

spousal benefit, Jo Ann and Bette Jo have an ongoing concern, reasonable in light of their

health travails, about Jo Ann’s lack of access to the Social Security survivor benefit in the

event that Bette Jo predeceases her.

257.

As Bette Jo and Jo Ann plan and budget yearly expenses, there is the

concern that if Bette Jo died before Jo Ann, Jo Ann would have no safety net and would

not be able to meet the costs of living, including maintaining her home, as well as paying

for food and non-insured medical care. Without the survivor benefit, Jo Ann would

likely live in enforced isolation from their family and friends in the Midwest, as the cost

of traveling would be prohibitive.

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Plaintiff Randell Lewis-Kendell

258.

Plaintiff Randell Lewis-Kendell, (“Randy”) is the surviving spouse of

a 30-year committed relationship with Robert Lewis-Kendell (“Robert”).

259.

Robert died in November 2007, at age 72, after a long battle with

recurrent colon cancer.

260.

Randy and Robert began their relationship in 1977 while both were

living in Connecticut. Their relationship was rooted in deep love and close friendship.

261.

Their families and community welcomed Randy and Robert’s

relationship from early on. Robert’s now adult children have always treated Randy as

their stepfather, and now their children consider Randy to be their grandpa.

262.

Robert grew up in a Boston suburb and was eager to return to

Massachusetts when the opportunity arose. In 1985, Randy and Robert moved together

to Massachusetts, and Robert began working in fundraising and development. Randy

worked in retail and became a manager at several stores.

263.

In 1993, Randy and Robert realized their mutual dream of relocating to

a small town on Cape Cod when they purchased a gift shop in Harwich Port,

Massachusetts.

264.

Randy and Robert quickly became an integral part of the local

business community and also became active in their local church.

265.

Initially, Randy and Robert rented a house in West Dennis,

Massachusetts, while they were building up their gift shop business. They reinvested all

the money they earned in the business and so, initially, they could not afford to purchase

their own home in Harwich Port.

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266.

In 2006, however, Robert and Randy purchased a small condominium

together in Harwich Port. Randy continues to live in that condominium.

267.

In 2002, Robert was diagnosed with colon cancer. Initially, he was

treated with surgery and monitoring but then, in 2004, there was a recurrence, and

Robert’s prognosis became far more serious. In 2004, Robert began chemotherapy

treatments.

268.

Randy took Robert to every medical appointment, including

appointments in Boston. Randy sat with Robert through every treatment and

administered needed medications at home. When necessary, Randy would close the gift

shop to care for Robert. As Robert’s condition worsened, Randy stayed with him at all

times and took care of him.

269.

Randy and Robert married on May 21, 2004, in Harwich Port,

Massachusetts, in strict and complete accordance with Massachusetts law. They married

to solidify their lifelong commitment. At the time of their marriage, they were both well

aware of the serious nature of Robert’s illness.

270.

After his long battle with colon cancer, Robert died on November 14,

2007, with Randy at his side.

271.

At the time of his death, Robert was receiving Social Security

retirement benefits in the amount of $1,161 per month based on his lifelong earnings

record. This benefit was a critical source of support for the couple.

272.

Since Robert passed away, Randy has lived in difficult economic

circumstances. The challenging economy and reduced tourism have negatively affected

sales at the gift shop. He has fallen behind on some bills.

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273.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death.

274.

When Randy made Robert’s funeral arrangements, the funeral director

informed Randy about the $255 lump-sum death benefit and mentioned that it could help

with funeral expenses. He made an application on Randy’s behalf, as the funeral home

does for other clients.

275.

On December 21, 2007, Randy again applied for the lump-sum death

benefit by appearing in person at the SSA office in Hyannis, Massachusetts and

submitting a written application. Form SSA-8-F4 (5-2003) EF (02-2006).

276.

The SSA denied Randy’s claim by letter dated April 16, 2008. Letter

from G.A. Sorrow, District Manager, SSA, Worcester, M.A., to Randell Lewis-Kendell

(Apr. 16, 2008).

277.

This letter stated that: “Since the Defense of Marriage Act prohibits

SSA from finding that you and the insured were married for benefit purposes, you are not

eligible for the lump sum death payment.” Id., at ¶ 2.

278.

Randy timely filed a Request for Reconsideration on May 30, 2008.

Form SSA-561-U2 (9-2007) ef (9-2007) (May 30, 2008).

279.

Randy’s Request for Reconsideration stated, “I am appealing because I

should receive the lump-sum death benefit. I was married under Massachusetts law since

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May 21, 2004. My spouse, Robert Lewis-Kendell, died on November 14, 2007. Since

DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage and it treats me

differently from other married people in Massachusetts, I believe DOMA [1 U.S.C. § 7]

is unconstitutional.” Id.

280.

Randy did not receive any response to his Request for Reconsideration

for several months. On October 23, 2008, nearly five months after Randy had made his

Request for Reconsideration, he even visited the Hyannis office of the SSA to try to get a

response. They told him that his request for the lump-sum benefit was in processing and

out of the control of the local office.

281.

Finally, in a letter dated November 19, 2008, the SSA denied Randy’s

Request for Reconsideration. Letter from Anne Jacobosky, Assistant Regional

Commissioner, Processing Center Operations, SSA, Northeast Program Service Center,

Jamaica, N.Y., to Randell Lewis-Kendell (Nov. 19, 2008).

282.

In its letter, the SSA wrote, “You are not entitled to benefits because

We [sic] cannot consider you to have been married to Robert A. Lewis-Kendell[.]” Id., at

4.

283.

In an explanation of its decision, the SSA cited DOMA, 1 U.S.C. § 7,

for the statement that, under federal law, “a marriage is the legal union of a man and a

woman as husband and wife, and a spouse is a husband or wife of the opposite sex.” Id.,

at 5.

284.

On December 31, 2008, Randy went to his local SSA office in

Hyannis, Massachusetts and requested, in writing, the EAP. Letter from Randell Lewis-

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Kendell to SSA, Hyannis, M.A. (Dec. 31, 2008). He has yet to receive a response to his

EAP request.

285.

In 2007 and 2008, Randy made explicit and formal requests for the

lump-sum death benefit. In 2008, Randy received explicit and formal notice from SSA

that his claim for that benefit was denied.

286.

Because Randy has been denied Social Security benefits that similarly

situated people who have survived a spouse of the opposite sex routinely receive, Randy

has suffered specific and concrete financial harm. Randy applied for this $255 death

benefit and was denied. Additionally, Randy intends to apply for the Social Security

widower/survivor benefit when he turns 60 and becomes age-eligible. Randy fears for

his financial security in his later years if he does not receive the widower/survivor

benefit.

Plaintiff Herbert Burtis

287.

Plaintiff Herbert Burtis (“Herb”) met John Ferris (“John”) in the late

1940s while both attended Michigan State University. The two men were brought

together by their mutual interest in classical music and had long careers as musicians.

288.

The couple moved to New York City after John was accepted into a

graduate program there. Herb transferred to Columbia University, where he worked part-

time as the associate choirmaster while pursuing his own graduate studies. John worked

as the choirmaster and organist at a church in New Jersey.

289.

In 1958, John left New York to conduct the Harvard University choir,

a position he held for 32 years, and to teach conducting at several schools. When John

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took the job at Harvard, Herb assumed John’s former position at the church in New

Jersey.

290.

The two men continued their loving relationship despite the distance

between them. In 1961, Herb and John purchased a home in Sandisfield, Massachusetts,

where they could be together when they did not have work responsibilities.

291.

In 1979, Herb left his church position in New Jersey and moved to

Massachusetts so that he and John could begin living together full time. During this time,

Herb gave private music lessons to students locally and at studios he maintained in New

York City and in New Jersey.

292.

In 1990, John retired from Harvard University and began to collect

Social Security benefits.

293.

For many years thereafter, both men were deeply involved in teaching

music. During this time, Herb continued to provide private music lessons to students,

including at his studios in New York City and New Jersey.

294.

Herb and John were married by a justice of the peace at their home in

Sandisfield, Massachusetts, on May 23, 2004, in strict and complete accordance with

Massachusetts law. After 55 years together, they were already a family, but they hoped

that marriage would increase their legal protections.

295.

At the time they married, John’s longstanding struggle with

Parkinson’s disease had intensified, and his health declined markedly over the next few

years due to Parkinson’s and other medical problems.

296.

Herb was the principal care-provider for John. He arranged for

medical treatments and dealt with the many emergencies and other issues that arose as

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John’s condition worsened. They both preferred that John be at home, and Herb labored

mightily to make that possible, although there were times when John needed to be

hospitalized or to convalesce in a rehabilitation facility.

297.

John had a stroke at the home he shared with Herb on July 3, 2008.

298.

John died on August 1, 2008 at the Great Barrington Nursing and

Rehabilitation Center in Great Barrington, Massachusetts. At the time of his death, he

and Herb had been in a relationship for 60 years and had been married for more than four.

299.

Under 42 U.S.C. § 402(i) and 20 C.F.R. §§ 404.390-404.391 and

§404.347, a surviving spouse is entitled to a lump-sum death payment of $255 if the

surviving spouse was “living in the same household with the deceased at the time of

death,” if the surviving spouse applies for the benefit “prior to the expiration of two years

after the date of death …,” and if the deceased spouse was “fully or currently insured” at

the time of death. John was insured by the Social Security program when he died

because he had contributed to the program while he worked.

300.

Under 42 U.S.C. § 402(f), widowers are entitled to insurance benefits

equal to the primary insurance amount earned by their deceased spouses.

301.

On October 20, 2008, Herb went to the Pittsfield, Massachusetts office

of the SSA to file an application for the lump-sum death benefit and the Social Security

survivor’s benefit based on John’s earnings record. Herb went to the SSA because he

recognized that he would receive a higher monthly benefit amount if he drew on the

survivor benefit rather than solely on his own earnings record.

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302.

A clerk of the SSA, Mrs. Rogers, refused to accept Herb’s application.

Mrs. Rogers informed Herb that the Social Security administration does not recognize

marriages between people of the same sex.

303.

On November 6, 2008, Erik Hawley of the SSA contacted Herb to

follow up on his request for Social Security benefits.

304.

Mr. Hawley informed Herb that Social Security would not process

Herb’s application, and that in any case it would be denied.

305.

By letter dated November 6, 2008, the SSA informed Herb that his

claim was denied. The letter stated:

An individual whose claim for benefits is based on a State recognized same-sex marriage or having the same status as spouse for State inheritance purposes cannot meet the statutory gender-based definition of husband, wife, widow, widower of the NH, including one who is divorced. Under the Defense of Marriage Act, 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. Therefore, for benefit purposes, SSA does not recognize such individual as the spouse of the NH.

Letter from Jaime Nieves, District Manager, SSA, Pittsfield, M.A., to Herbert Burtis (Nov. 6, 2008).

306.

Herb timely filed a Request for Reconsideration by mail in December,

2008. Form SSA-561-U2 (9-2007) ef (7-2008). Herb’s request stated: “I am appealing

because I should receive the death benefit and widower’s benefit. I was married under

Massachusetts law since May 23, 2004. My spouse, John Ferris, died on August 1, 2008.

Since DOMA [1 U.S.C. § 7] blocks recognition of my marital status/marriage, and it

treats me differently from other married people in Massachusetts, I believe DOMA [1

U.S.C. § 7] is unconstitutional.” Id.

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307.

By letter dated January 20, 2009, the SSA informed Herb that its letter

“supplements our prior response of November 6, 2008” and advised him that he could

appeal if he believed that “this revised and reconsidered determination is not correct.”

Letter from P.M. Smith, Assistant Regional Commissioner, Processing Center

Operations, SSA. Great Lakes Program Service Center, Chicago, I.L., to Herbert Burtis

(Jan. 20, 2009).

308.

On February 9, 2009, Herb requested the EAP for his claim for the

lump-sum death benefit and survivor benefit in response to the SSA’s January 20, 2009

letter. Letter from Herbert Burtis to SSA, Pittsfield, M.A. (Feb. 9. 2009). He has not

received a response to his EAP request.

309.

In 2008 and 2009, Herb made explicit and formal requests for benefits

to SSA and received explicit and formal denials.

310.

Because the SSA does not recognize Herb’s marriage, Herb has been

denied the Social Security death benefit and the Social Security survivor’s benefit and

thus has suffered specific and concrete financial harm.

Plaintiffs Keith Toney and Albert Toney III

311.

Plaintiffs Keith Toney (“Keith”) and Albert Toney III (“Al”) met in

1998 and have been in a committed relationship since 1999.

312.

Al is a retired and disabled police officer and currently serves as the

President of AK Consulting Services Inc., which he and Keith started together.

313.

Keith also works in the consulting company as Vice President, helping

to operate the company from day to day.

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314.

Together, Al and Keith have raised Al’s daughter from a previous

marriage since she was 12 years old. She now attends college and lives with Keith and

Al in the home they jointly own in the village of Jefferson, in the town of Holden,

Massachusetts.

315.

Together, they have contributed to the civic life of their community.

They have opened their home to foster children for both long term and respite care. In

addition, they have been active in and helped raise money for numerous charities and

benefits, including an annual walk to raise awareness about violence against women.

316.

After five years together, Al and Keith were married on May 20, 2004,

by the city clerk at Worcester City Hall, in strict and complete accordance with

Massachusetts law. Their marriage was the realization of a dream they had held ever

since they had become a committed couple. They will have been married for five years

as of May 20, 2009.

317.

Prior to marrying Al, Keith’s legal surname was Fitzpatrick. Keith,

Al, and their daughter discussed having the same last name after Keith and Al’s marriage

and agreed that Keith would change his surname to “Toney.”

318.

In accordance with Massachusetts General Laws Chapter 46, Section

1D, Keith legally changed his surname to “Toney” pursuant to marriage, as evidenced by

his listing “Toney” under “Surname After Marriage” on his marriage certificate, thus

sharing the same surname as Al and his daughter. Commonwealth of Massachusetts,

Department of Public Health, Registry of Vital Records and Statistics, Certificate of

Marriage, part 11A (May 20, 2004).

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319.

On August 15, 2007, Keith applied to United States Department of

State (“State Department”), requesting that his passport be reissued under his true legal

and proper married name, Keith Douglas Toney.

320.

In support of his application, Keith provided his marriage license,

Massachusetts driver’s license, and other documents evidencing his legal name.

321.

At the time of Keith’s application in August 2007, the State

Department had a policy recognizing a marriage license as adequate evidence of a name

change. This policy was later codified as 22 C.F.R. § 51.25(c), which now states in

relevant part that “a name change will be recognized for purposes of issuing a passport if

the name change occurs in one of the following ways,” including subsection (3):

“Marriage. An applicant who has adopted a new name following marriage must present a

copy of the marriage certificate.”

322.

By letter dated September 11, 2007, the Washington Passport Agency

of the State Department denied Keith’s passport application. Letter from Ms. C. Pamela

Holliday, Regional Director, State Department, Washington, D.C., to Keith Douglas

Toney (Sept. 11, 2007).

323.

The September 11, 2007 denial provided the following reasoning:

We are unable to comply with your request for a name change based on the documentation you sent because the Defense of Marriage Act, Public Law 104199, 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 a wife.’” Therefore, the marriage certificate issued by Massachusetts, which you have submitted in support of your name change, is not acceptable as evidence for recognizing an immediate name change on the basis of marriage.

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324.

On October 2, 2007, Keith replied to the September 11, 2007 denial

with a letter requesting that the Washington Passport Agency reconsider its denial of his

application and reissue his passport under his true legal and proper name, Keith Douglas

Toney. Letter from Keith Douglas Toney to C. Pamela Holliday, Regional Director,

State Department, Washington, D.C. (Oct. 2, 2007).

325.

In support of his October 2, 2007 request, Keith submitted an affidavit

attesting to his legal name change, along with copies of the following state-issued

documents: (a) his marriage certificate listing his surname after marriage as “Toney,” (b)

his reissued Massachusetts driver’s license under his legal surname after marriage,

Toney, and (c) a notice from the Town of Holden acknowledging that his voter

registration name has been changed to his legal surname after marriage, Toney.

326.

The Washington Passport Agency of the State Department phoned

Keith on October 31, 2007, informing him that his application had been denied and that

his passport would be reissued under his prior surname, Fitzpatrick. He later received a

new passport in his prior surname.

327.

The only dispute between Keith and the State Department concerns an

issue of constitutional law that lies beyond the purview of the State Department.

328.

As a result of the State Department’s refusal to issue Keith’s passport

in his correct legal name, both Al and Keith have suffered specific and concrete harm,

including emotional harm. In particular, given heightened security concerns world-wide

since September 11, 2001, travelling in a foreign country with an inconsistent and

inaccurate passport that does not match Keith’s other identification documents or have

his correct, legal name has caused them both to feel vulnerable and insecure when they

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have travelled abroad. It has also caused inconvenience and confusion when conducting simple transactions such as renting a car or cashing a traveler’s check. Given that Keith carries conflicting identification, and his passport does not match his credit cards, he is forced to explain his personal circumstances to complete strangers in other countries, often across language barriers, further heightening his and Al’s sense of vulnerability.

COUNT I (Nancy Gill and Marcelle Letourneau
v. Office of Personnel Management, United States Postal Service and John E. Potter)

329.

Plaintiffs Nancy Gill and Marcelle Letourneau repeat and reallege the

allegations set forth in Paragraphs 13-14, 35-58, and 59-97 as if fully set forth herein.

330.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.

331.

Federal employees who are eligible for FEHB are also eligible to

participate in the Federal Flexible Spending Account Program, including HCFSA.

332.

In 2004, Congress expanded health insurance benefits for federal

employees by adopting the “Federal Employee Dental and Vision Benefits Enhancement

Act of 2004.” Public Law 108-496.

333.

The vision portion of the FEDVIP is a creature of federal statute,

Chapter 89B of Title 5 of the United States Code. See generally 5 U.S.C. §§ 8981-92.

334.

The FEHB Program, the Federal Flexible Spending Account Program,

and the FEDVIP Program extend to United States Postal employees. See 39 U.S.C.

§1005(f).

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335.

Pursuant to Congressional authority, 5 U.S.C. § 8913, OPM prescribes

all regulations to carry out the FEHB program.

336.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

337.

Under existing FEHB statutory and regulatory provisions, the spouse

of a covered employee who has elected “Self and Family” coverage is automatically

enrolled for health insurance purposes under the FEHB Program.

338.

Under existing FEHB statutory and regulatory provisions, Nancy

would be able to provide for health insurance coverage to her spouse Marcelle under the

“Self and Family” plan but for OPM’s application of DOMA, 1 U.S.C. § 7, which denies

health insurance coverage to a Postal Service employee’s spouse if that spouse is of the

same sex.

339.

Under existing FEHB statutory and regulatory provisions, Marcelle

would receive health insurance coverage under Nancy’s “Self and Family” plan but for

OPM’s application of DOMA, 1 U.S.C. § 7, which denies health insurance coverage to a

Postal Service employee’s spouse if that spouse is of the same sex.

340.

In addition to spousal coverage under the FEHB program, a Postal

Service employee’s spouse can be covered under the employee’s HCFSA.

341.

Nancy would be able to extend her HCFSA coverage to include

Marcelle but for OPM’s application of DOMA, 1 U.S.C. § 7, which precludes HCFSA

coverage to a Postal Service employee’s spouse if that spouse is of the same sex.

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342.

Marcelle would be covered by Nancy’s HCFSA but for OPM’s

application of DOMA, 1 U.S.C. § 7, which precludes HCFSA coverage to a Postal

Service employee’s spouse if that spouse is of the same sex.

343.

Pursuant to Congressional authority, 5 U.S.C. § 8992(a), OPM

prescribes regulations to carry out FEDVIP.

344.

The pertinent regulations promulgated by OPM are contained in Part

894 of Title 5 of the Code of Federal Regulations.

345.

Under FEDVIP statutory and regulatory provisions, a covered

employee who has elected “Self and Family” enrollment for FEDVIP makes coverage

available for all eligible family members. “Member of family” is defined in Chapter

89B, 5 U.S.C. § 8991(2), as having the same meaning as that term has for FEHB under

Chapter 89, 5 U.S.C. § 8901(5), i.e., including the covered employee’s spouse.

346.

Under existing FEDVIP statutory and regulatory provisions, Nancy

would be able to enroll Marcelle in the vision coverage under the FEDVIP but for OPM’s

application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance coverage

to a Postal Service employee’s spouse if that spouse is the same sex as the employee.

347.

Under existing FEDVIP statutory and regulatory provisions, Marcelle

would be enrolled in Nancy’s enhanced vision coverage under the FEDVIP but for

OPM’s application of DOMA, 1 U.S.C. § 7, which precludes spousal vision insurance

coverage to a Postal Service employee’s spouse if that spouse is of the same sex as the

employee.

348.

The disparity of treatment with regard to federal employment-related

benefits available to Nancy and Marcelle is not mandated by DOMA, 1 U.S.C. § 7, but

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rather reflects an improper and overly narrow construction of the permissible bounds of

OPM’s authority to extend coverage to family members.

349.

All federal statutory provisions as to employment-related benefits that

turn on “member of family,” “family” or “family members,” including but not limited to

5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of

coverage availability but do not establish absolute ceilings or outer boundaries of

coverage.

350.

To the extent that the disparity of treatment with regard to federal

employment-related benefits available to Nancy and Marcelle is, in fact, mandated by

DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats

similarly-situated individuals differently without justification in excess of Congressional

authority in violation of the right of equal protection secured by the Fifth Amendment of

the Constitution of the United States.

351.

An actual controversy exists between and among the parties.

COUNT II (Martin Koski and James Fitzgerald
v. Office of Personnel Management)

352.

Plaintiffs Martin Koski and James Fitzgerald repeat and reallege the

allegations set forth in Paragraphs 15-16, 35-58, and 98-123 as if fully set forth herein.

353.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. §§ 8901 et seq.

354.

Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM

prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.

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355.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

356.

The FEHB Program extends to qualified annuitants of the Social

Security Administration, including Martin. See 5 U.S.C. §§ 8901, 8905.

357.

Under existing FEHB statutory and regulatory provisions, a qualified

annuitant may elect “Self and Family” coverage and enroll his spouse for health

insurance benefits under the FEHB program.

358.

Under existing FEHB statutory and regulatory provisions, Martin

would be able to enroll Jim in a “Self and Family” plan but for OPM’s application of

DOMA, 1 U.S.C. § 7, which denies spousal health insurance coverage to a retired federal

employee’s spouse if that spouse is of the same sex.

359.

Under existing FEHB statutory and regulatory provisions, Jim would

be enrolled in Martin’s “Self and Family” plan but for OPM’s application of DOMA, 1

U.S.C. § 7, which denies spousal health insurance coverage to a retired federal

employee’s spouse if that spouse is of the same sex.

360.

The disparity of treatment with regard to federal employment-related

benefits available to Martin and Jim is not mandated by DOMA, 1 U.S.C. § 7, but rather

reflects an improper and overly narrow construction of the permissible bounds of OPM’s

authority to extend coverage to family members.

361.

All federal statutory provisions as to employment-related benefits that

turn on “member of family,” “family” or “family members,” including but not limited to

5 U.S.C. §§ 8901 and 8981, set general guidelines and minimum requirements of

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coverage availability but do not establish absolute ceilings or outer boundaries of

coverage.

362.

To the extent that the disparity of treatment with regard to federal

employment-related benefits available to Martin and Jim is, in fact, mandated by DOMA,

1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly-

situated individuals differently without justification in excess of Congressional authority

in violation of the right of equal protection secured by the Fifth Amendment of the

Constitution of the United States.

363.

An actual controversy exists between and among the parties.

COUNT III (Dean Hara
v. Office of Personnel Management
and Michael J. Astrue)

364.

Plaintiff Dean Hara repeats and realleges the allegations set forth in

Paragraph 17, 35-58, 90-94, 112-116, and 124-169 as if fully set forth herein.

365.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

366.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

367.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

368.

Under 42 U.S.C. § 402(i), the widower of a deceased person shall

receive a lump-sum benefit of $255 after the death of his spouse.

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369.

Under existing Social Security statutory and regulatory provisions,

Dean would be entitled to the $255 death benefit as the legal surviving spouse of Gerry

Studds but for DOMA, 1 U.S.C. § 7, which denies the benefit to an otherwise qualifying

surviving spouse if that spouse is the same sex.

370.

DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification

with respect to Social Security benefits that treats similarly-situated individuals

differently without justification in excess of Congressional authority in violation of the

right of equal protection secured by the Fifth Amendment of the Constitution of the

United States.

371.

Dean’s constitutional claims are ripe for review by this Court.

372.

Dean’s application for the lump-sum benefit raises no disputed issues

of fact.

373.

DOMA, 1 U.S.C. § 7, alone bars Dean from receiving the lump-sum

benefit.

374.

It would be futile for Dean to pursue any further administrative

process, because the SSA’s position that DOMA, 1 U.S.C. § 7, bars him from receiving

the lump-sum death benefit is the sole basis for its denial of his claim and raises a

constitutional issue that is beyond the SSA’s purview.

375.

The civil service retirement program for federal employees is a

creature of federal statute, Subchapter III of Chapter 83 of Title 5 of the United States

Code. See generally 5 U.S.C. §§ 8331 et seq.

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376.

Survivor annuities for surviving spouses of federal employees,

including Members of Congress, are also a creature of federal statute, 5 U.S.C. §§ 8339

and 8341.

377.

Pursuant to Congressional authority, 5 U.S.C. § 8347(a), OPM

prescribes all regulations to carry out Subchapter III of Chapter 83 of Title 5 of the

United States Code.

378.

The pertinent regulations promulgated by OPM are contained in Part

831 of Title 5 of the Code of Federal Regulations.

379.

Under existing civil service statutory and regulatory provisions and in

light of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Dean would be entitled to a spousal

survivor annuity as the legal surviving spouse of retired federal employee Gerry Studds

but for DOMA, 1 U.S.C. § 7, which precludes the granting of the surviving spousal

annuity to an otherwise qualifying surviving spouse if that spouse is of the same sex.

380.

The disparity of treatment with regard to CSRS survivor annuities that

is mandated by OPM’s application of DOMA, 1 U.S.C. § 7, creates a classification that

treats similarly-situated individuals differently without justification in excess of

Congressional authority in violation of the right of equal protection secured by the Fifth

Amendment of the Constitution of the United States.

381.

Dean has exhausted all administrative remedies to adjudicate all

necessary factual issues regarding his claim for a CSRS survivor annuity within the

purview of the MSPB.

382.

In light of the MSPB’s decision, there are no factual disputes.

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383.

Dean’s spousal survivor annuity claim is properly presented in federal

district court.

384.

The FEHB program is a creature of federal statute, Chapter 89 of Title

5 of the United States Code. See generally 5 U.S.C. § 8901 et seq.

385.

Pursuant to Congressional authority, 5 U.S.C. § 8913, the OPM

prescribes all regulations to carry out Chapter 89 of Title 5 of the United States Code.

386.

The pertinent regulations promulgated by OPM are contained in Part

890 of Title 5 of the Code of Federal Regulations.

387.

Under FEHB statutory and regulatory provisions, the surviving spouse

of a retired federal employee/annuitant is eligible to enroll in a federal health insurance

program if, at the time of the annuitant’s death, the annuitant had elected “Self and

Family” health insurance coverage and if the surviving spouse is also eligible for a

spousal survivor annuity.

388.

Under pertinent FEHB statutory and regulatory provisions and in light

of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to

Dean, or, in the alternative, is deemed to have in fact elected for Dean, a spousal survivor

annuity.

389.

Under pertinent FEHB statutory and regulatory provisions and in light

of the MSPB’s final decision in Dean Hara v. Office of Personnel Management

(CSF3067396), Docket No. PH-0831-08-0099-I-2, Gerry Studds intended to provide to

Dean, or, in the alternative, is deemed to have in fact elected for Dean, his inclusion

under federal health insurance coverage.

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390.

OPM is estopped under the MSPB’s final decision in Dean Hara v.

Office of Personnel Management (CSF3067396), Docket No. PH-0831-08-0099-I-2,

from enforcing any asserted requirement of election by Congressman Studds vis-à-vis

“Self and Family” coverage.

391.

Under pertinent FEHB statutory and regulatory provisions, Dean

would be able to receive health insurance coverage but for OPM’s application of DOMA,

1 U.S.C. § 7, which denies health insurance coverage to a federal employee’s surviving

spouse if that surviving spouse is of the same sex.

392.

The disparity of treatment with regard to FEHB health insurance

available to Dean is not mandated by DOMA, 1 U.S.C. § 7, but rather reflects an

improper and overly narrow construction of the permissible bounds of OPM’s authority

to extend benefits to family members.

393.

All federal statutory provisions as to FEHB health insurance that turn

on “member of family” or “spouse,” including but not limited to 5 U.SC. §§ 8901, set

general guidelines and minimum requirements of coverage availability but do not

establish absolute ceilings or outer boundaries of coverage.

394.

To the extent that a disparity of treatment with regard to the FEHB

program is mandated by DOMA, 1 U.S.C. § 7, it creates a classification that treats

similarly-situated individuals differently without justification in excess of Congressional

authority in violation of the right of equal protection secured by the Fifth Amendment of

the Constitution of the United States.

395.

Dean has made presentment of his claim for enrollment in the FEHB

program.

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396.

Dean’s application for FEHB health insurance raises no disputed

issues of fact.

397.

DOMA, 1 U.S.C. § 7, alone bars Dean from receiving FEHB health

insurance.

398.

It would be futile for him to pursue further administrative remedies

given OPM’s practice and policy of barring members of marriages between two

individuals of the same sex from receiving FEHB benefits on the basis of DOMA, 1

U.S.C. § 7, including plaintiffs Nancy Gill and Martin Koski.

399.

Review of this practice and policy raises a constitutional issue beyond

the purview of OPM.

400.

An actual controversy exists between and among the parties.

COUNT IV (Mary Ritchie and Kathleen Bush
v. United States of America)

401.

Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

402.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction under 28 U.S.C. § 1346

(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the United

States of America.

403.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2004.

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404.

On or before April 15, 2005, Mary timely filed with the IRS Service

Center at Andover, Massachusetts a federal income tax return for the year 2004 using the

Head of Household filing status. Mary timely paid federal income tax of $5,531 on

account of this federal income tax return.

405.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

406.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $1,054,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

rather than Mary and Kathy being permitted to file one federal income tax return as

Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

407.

The IRS disallowed the claim by letter dated July 17, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

408.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status. As a result of this

disparity of treatment, Mary and Kathy paid $1,054 more in federal income tax in 2004

than a similarly situated different-sex married couple would have paid.

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409.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT V (Mary Ritchie and Kathleen Bush
v. United States of America)

410.

Plaintiffs Mary Ritchie and Kathleen Bush, repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

411.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

412.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2005.

413.

On or before April 15, 2006, Mary timely filed with the IRS Center at

Andover, Massachusetts a federal income tax return for the year 2005 using the Head of

Household filing status. Mary timely paid federal income tax of $7,554 on account of

this federal income tax return.

414.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

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415.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $2,703,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

rather than Mary and Kathy being able to file on one federal income tax return as Married

Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

416.

The IRS disallowed the claim by letter dated July 18, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

417.

An individual married to a person of a different sex is not forced to file

his or her federal income tax returns as anything other than Married. Indeed, he or she is

required to file using his or her legal marital status. Legally married same-sex couples

are forced to use an incorrect marital status, which results in a different federal income

tax assessment than if they had used their correct married status. As a result of this

disparity of treatment, Mary Ritchie and Kathleen Bush paid $2,703 more in federal

income tax in 2005 than a similarly situated different-sex married couple would have

paid.

418.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

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COUNT VI (Mary Ritchie and Kathleen Bush
v. United States of America)

419.

Plaintiffs Mary Ritchie and Kathleen Bush repeat and reallege the

allegations set forth in Paragraphs 18-19, 35-58, and 170- 203 as if fully set forth herein.

420.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

421.

Mary and Kathy seek recovery of federal income tax for the taxable

year ending December 31, 2006.

422.

On or before April 15, 2007, Mary timely filed with the IRS Service

Center at Andover, Massachusetts a federal income tax return for the year 2006 using the

Head of Household filing status. Mary timely paid federal income tax of $13,626 on

account of this federal income tax return.

423.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

424.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Mary

and Kathy filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for a refund of federal income tax overpaid in the amount of $4,390,

based on the fact that they were married under Massachusetts law. They stated that,

because of DOMA, 1 U.S.C. § 7, Mary had been forced to file as Head of Household,

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rather than Mary and Kathy Bush being able to file on one federal income tax return as

Married Filing Jointly, and stated that DOMA, 1 U.S.C. § 7, was unconstitutional.

425.

The IRS disallowed the claim by letter dated July 18, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

426.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Mary Ritchie and Kathleen Bush paid $4,390 more in

federal income tax in 2006 than a similarly situated different-sex married couple would

have paid.

427.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Mary and Kathy, it

creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT VII (Melba Abreu and Beatrice Hernandez
v. United States of America)

428.

Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege

the allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth

herein.

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429.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

430.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2004.

431.

On or before April 15, 2005, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2004 using the

Single filing status. Melba timely paid federal income taxes of $16,306 on account of

this federal income tax return.

432.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

433.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $4,687, based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

434.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

435.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

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Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Melba Abreu and Beatrice Hernandez paid $4,687

more in federal income tax in 2004 than a similarly situated different-sex married couple

would have paid.

436.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT VIII (Melba Abreu and Beatrice Hernandez
v. United States of America)

437.

Melba Abreu and Beatrice Hernandez, repeat and reallege the

allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth herein.

438.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

439.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2005.

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440.

On or before April 15, 2006, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2005 using the

Single filing status. Melba timely paid federal income tax of $12,621 on account of this

federal income tax return.

441.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

442.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $3,785 based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

443.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

444.

An individual who is married to a person of a different sex is not

forced to file his or her federal income tax returns as anything other than Married.

Indeed, he or she is required to file using his or her legal marital status. Legally married

same-sex couples are forced to use an incorrect marital status, which results in a different

federal income tax assessment than if they had used their correct married status. As a

result of this disparity of treatment, Melba and Beatrice paid $3,785 more in federal

income tax in 2005 than a similarly situated different-sex married couple would have

paid.

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445.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

COUNT IX (Melba Abreu and Beatrice Hernandez
v. United States of America)

446.

Plaintiffs Melba Abreu and Beatrice Hernandez, repeat and reallege

the allegations set forth in Paragraphs 20-21, 35-58, and 204-234 as if fully set forth

herein.

447.

This is an action for the recovery of federal income tax erroneously or

illegally assessed and collected. This Court has jurisdiction by reason of 28 U.S.C.

§ 1346(a)(1). This action also arises under 26 U.S.C. § 7422. The defendant is the

United States of America.

448.

Melba and Beatrice seek recovery of federal income tax for the taxable

year ending December 31, 2006.

449.

On or before April 15, 2007, Melba timely filed with the IRS Service

Center in Andover, Massachusetts a federal income tax return for the year 2006 using the

Single filing status. Melba timely paid federal income tax of $24,467 on account of this

federal income tax return.

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450.

The IRS stated in a 1958 Revenue Ruling that for federal tax law

purposes an individual is married if she or he is married under local law. Rev. Rul. 58-

66, 1958-1 C.B. 60.

451.

On April 14, 2008, consistent with the 1958 Revenue Ruling, Melba

and Beatrice filed an IRS Form 1040X claim with the IRS Service Center at Andover,

Massachusetts, for refund of federal income tax overpaid in the amount of $5,546 based

on the fact that they were married under Massachusetts law. They stated that, because of

DOMA, 1 U.S.C. § 7, Melba had been forced to file as Single, rather than Melba and

Beatrice being able to file on one federal income tax return as Married Filing Jointly.

452.

The IRS disallowed the claim by letter dated June 20, 2008. The

disallowance was solely because of DOMA, 1 U.S.C. § 7.

453.

An individual married to a person of a different sex is not forced to file

his or her federal income tax returns as anything other than Married. Indeed, he or she is

required to file using his or her legal marital status. Legally married same-sex couples

are forced to use an incorrect marital status, which results in a different federal income

tax assessment than if they had used their correct married status. As a result of this

disparity of treatment, Melba and Beatrice paid $5,546 more in federal income tax in

2006 than a similarly situated different-sex married couple would have paid.

454.

Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this

disparity of treatment with regard to the federal income tax filing of Melba and Beatrice,

it creates a classification that treats similarly-situated individuals differently without

justification in excess of Congressional authority in violation of the right of equal

protection secured by the Fifth Amendment of the Constitution of the United States.

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COUNT X (Jo Ann Whitehead and Bette Jo Green
v. Michael J. Astrue)

455.

Plaintiffs Bette Jo Green and Jo Ann Whitehead repeat and reallege

the allegations set forth in Paragraphs 22-23, 35-58, and 235-257 as if fully set forth

herein.

456.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

457.

Pursuant to 42 U.S.C. § 902, defendant Michael J. Astrue enforces

federal law concerning eligibility for Social Security benefits through his supervision of

the SSA.

458.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

459.

Under existing Social Security statutory and regulatory provisions, see

42 U.S.C. § 402(f), individuals who qualify for old-age insurance benefits are eligible to

extend those benefits to their spouses. Pursuant to the Social Security Act, a spouse who

applies for Social Security benefits at full retirement age and has a benefit lower than

50% of that of his or her spouse receives an amount equal to 50% of his or her spouse’s

full retirement benefit.

460.

As a person legally married under Massachusetts law, Bette Jo would

be able to share the benefit of her earnings record with her spouse Jo Ann but for DOMA,

1 U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if

that spouse is of the same sex.

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461.

As a person legally married under Massachusetts law, Jo Ann would

be entitled to old-age insurance benefits from her spouse Bette Jo but for DOMA, 1

U.S.C. § 7, which denies old-age insurance benefits to a covered individual’s spouse if

that spouse is the same sex.

462.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

463.

It would be futile for Jo Ann to proceed further with the SSA because

she cannot obtain the spousal benefit solely because of DOMA, 1 U.S.C. § 7 and because

the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

464.

An actual controversy exists between and among the parties.

COUNT XI (Randell Lewis-Kendell
v. Michael J. Astrue)

465.

Plaintiff Randell Lewis-Kendell repeats and realleges the allegations

set forth in Paragraphs 24, 35-58, and 258-286 as if fully set forth herein.

466.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

467.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

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468.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

469.

Under existing federal law, 42 U.S.C. § 402(i), the widower of a

deceased person shall receive a lump-sum benefit of $255 after the death of his spouse.

470.

As a person legally married under Massachusetts law, Randy would

receive the lump-sum death benefit authorized under the Social Security Act but for

DOMA, 1 U.S.C. § 7, which denies the lump-sum death benefit to an individual who is

married to someone of the same sex.

471.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

472.

It would be futile for Randy to proceed further with the SSA because

he cannot obtain the lump-sum benefit solely because of DOMA, 1 U.S.C. § 7, and

because the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

473.

An actual controversy exists between and among the parties.

COUNT XII (Herbert Burtis
v. Michael J. Astrue)

474.

Plaintiff Herbert Burtis repeats and realleges the allegations set forth in

Paragraphs 25, 35-58, and 287-310 as if fully set forth herein.

475.

The Social Security Act is codified in Chapter 7 of Title 42 of the

United States Code. See generally 42 U.S.C. §§ 301 et seq.

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476.

Pursuant to Congressional authority, 42 U.S.C. § 902, defendant

Michael J. Astrue enforces federal law relative to eligibility of benefits through his

supervision of the SSA.

477.

The pertinent regulations promulgated by the SSA are contained in

Parts 400 to 499 of Title 20 of the Code of Federal Regulations.

478.

Under federal law, 42 U.S.C. § 402(i), the widower of a deceased

person shall receive a lump-sum of $255 after the death of his spouse.

479.

Herb’s claim for the lump-sum death benefit was denied because of

DOMA, 1 U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to

interpret the Social Security Act to deny benefits to persons married to spouses of the

same sex.

480.

As a legally married person under Massachusetts law, Herb would

receive the lump-sum death benefit authorized under the Social Security Act, but for the

SSA’s position that federal law—as applied by the SSA—precludes the grant of the

lump-sum death benefit to an individual who is married to someone of the same sex.

481.

DOMA, 1 U.S.C. § 7, creates a classification with respect to Social

Security benefits that treats similarly-situated individuals differently without justification

in excess of Congressional authority in violation of the right of equal protection secured

by the Fifth Amendment of the Constitution of the United States.

482.

It would be futile for Herb to proceed further with the SSA because he

cannot obtain the lump-sum benefit solely because of DOMA, 1 U.S.C. § 7, and because

the SSA cannot consider the constitutionality of DOMA, 1 U.S.C. § 7.

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483.

Under federal law, 42 U.S.C. § 402(g), the widower of a deceased

insured shall receive insurance benefits up to the primary insurance amount earned by his

insured deceased spouse.

484.

Herb’s claim for the survivor benefit was denied because of DOMA, 1

U.S.C. § 7, and because the SSA is required under DOMA, 1 U.S.C. § 7, to interpret the

Social Security Act to deny benefits to persons married to spouses of the same sex.

485.

As a person legally married under Massachusetts law, Herb would be

entitled to the survivor benefit from his deceased spouse John but for DOMA, 1 U.S.C.

§ 7, which denies survivor benefits to a covered individual’s spouse if that spouse is of

the same sex.

486.

DOMA, 1 U.S.C. § 7, as applied by the SSA, creates a classification

with respect to Social Security benefits that treats similarly-situated individuals

differently without justification in excess of Congressional authority in violation of the

right of equal protection secured by the Fifth Amendment of the Constitution of the

United States.

487.

Further administrative process within the SSA is futile because

DOMA, 1 U.S.C. § 7, requires the survivor benefit be denied to Herb, and the SSA

cannot consider the constitutionality of DOMA, 1 U.S.C. § 7, or the constitutionality of

any interpretation of the Social Security statute denying the validity of his marriage.

488.

An actual controversy exists between and among the parties.

COUNT XIII (Keith Toney & Albert Toney III
v. Hillary Rodham Clinton)

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489.

Plaintiffs Keith and Albert Toney III repeat and reallege the

allegations set forth in Paragraphs 26-27, 35-58, and 311-328 as if fully set forth herein.

490.

The issuance of United States passports is controlled generally by

Chapter 4 of Title 22 of the United States Code. See generally 22 U.S.C. §§ 211a, et.

seq.

491.

Under 22 U.S.C. § 211a, the Secretary of State has the authority to

grant and issue passports in accordance with United States law.

492.

Pursuant to Congressional authority, 22 U.S.C. § 2651a(4), the

Secretary of State prescribes all regulations to carry out Chapter 4 of Title 22 of the

United States Code.

493.

The pertinent regulations promulgated by the Secretary of State are

contained in Part 51 of Title 22 of the Code of Federal Regulations.

494.

The Secretary of State refused to issue Keith’s passport in his married

name solely because of the State Department’s position that DOMA, 1 U.S.C.

§ 7, precludes the interpretation of the term “marriage” to include a marriage between

people of the same sex.

495.

Under the practice now codified by 22 C.F.R. § 51.25(c)(3), if Keith

were married to a woman, not a man, he would be entitled to the issuance of a United

States passport in his legal surname after marriage upon presenting a copy of the

marriage certificate to the State Department. Because of DOMA, 1 U.S.C. § 7, as applied

by the State Department, Keith was treated differently from a similarly situated person

married to an individual of a different sex.

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496.

Both Keith and Al are harmed by the fact that Keith must travel with a

passport that is not issued in his true legal name. Both are subjected to insecurity and

fear that Keith may be detained, denied entry into other countries, or denied re-entry into

the United States.

497.

DOMA, 1 U.S.C. § 7, as applied by the State Department, creates a

classification with respect to the issuance of passports that treats similarly-situated

individuals differently without justification in excess of Congressional authority in

violation of the right of equal protection secured by the Fifth Amendment of the

Constitution of the United States.

498.

An actual controversy exists between and among the parties.

PRAYERS FOR RELIEF

WHEREFORE, the plaintiffs pray that this Court: 1. Declare that the FEHB Program, the HCSFA, and the FEDVIP Program permit coverage of same-sex spouses under their authorizing statutes and regulations. 2. Declare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiffs. 3. Enjoin the defendants from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex. 4. Issue an injunction ordering defendant Michael J. Astrue to review the applications for benefits of plaintiffs Jo Ann Whitehead, Randy Lewis-Kendell, Herb Burtis, and Dean Hara without regard to DOMA, 1 U.S.C. § 7.

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Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 91 of 92

5. Award plaintiffs Mary Ritchie and Kathleen Bush judgment in the amount

of $8,147, plus interest and costs as allowed by law, and such other relief as this Court

may deem just, including the award of reasonable litigation costs incurred in this

proceeding under 26 U.S.C. § 7430.

6. Award plaintiffs Melba Abreu and Beatrice Hernandez judgment in the

amount of $14,018, plus interest and costs as allowed by law, and such other relief as this

Court may deem just, including the award of reasonable litigation costs incurred in this

proceeding under 26 U.S.C. § 7430.

7. Award attorney’s fees and costs to plaintiffs pursuant to 28 U.S.C. § 2412

or any other applicable statutory provision.

8. Grant such other relief as is just and appropriate.

NANCY

GILL & MARCELLE LETOURNEAU MARTIN KOSKI & JAMES FITZGERALD DEAN HARA MARY RITCHIE & KATHLEEN BUSH MELBA ABREU & BEATRICE HERNANDEZ JO ANN WHITEHEAD & BETTE JO GREEN RANDELL LEWIS-KENDELL HERBERT BURTIS KEITH TONEY & ALBERT TONEY III

By their attorneys,

GAY

& LESBIAN ADVOCATES & DEFENDERS

Gary gbuseck@glad.org Mary mbonauto@glad.org Ni neshghi@glad.org Janson jwu@glad.org

/s/ Gary D. Buseck D. Buseck, BBO # 067540
L. Bonauto, BBO # 549967
ma R. Eshghi, BBO # 633716
Wu, BBO # 600949

91

Case 1:09-cv-10309-JLT Document 1 Filed 03/03/09 Page 92 of 92

30 Boston, (617)

Winter Street, Suite 800 MA 02108
426-1350

AS TO PLAINTIFFS MARTIN KOSKI & JAMES FITZGERALD, DEAN HARA, MARY RITCHIE & KATHLEEN BUSH, MELBA ABREU & BEATRICE HERNANDEZ, JO ANN WHITEHEAD & BETTE JO GREEN, RANDELL LEWIS-KENDELL, HERBERT BURTIS, AND KEITH TONEY & ALBERT TONEY III,

FOLEY

HOAG LLP

/s/ Claire claporte@foleyhoag.com Vickie vhenry@foleyhoag.com Matthew mmiller@foleyhoag.co Am asenier@foleyhoag.com Seaport 155 Boston, (617)

Claire Laporte Laporte, BBO # 554979
L. Henry, BBO # 632367
Miller, BBO # 655544 m
y Senier, BBO # 672912
World Trade Center West Seaport Boulevard
MA 02210-2600 832-1000

AS TO PLAINTIFFS MARY RITCHIE & KATHLEEN BUSH, AND MELBA ABREU & BEATRICE HERNANDEZ,

SULLIVAN

& WORCESTER LLP

/s/ David
Richard
Boston, 617

David J. Nagle J. Nagle, BBO # 638385
dnagle@sandw.com L. Jones, BBO # 631273
rjones@sandw.com One Post Office Square
MA 02109 338-2800

DATED: March 3, 2009

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 Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t189 FDialeted F05ile/3d1:/0152/31P/a2g0e121 of 3E5ntry ID: 5645268
United States Court of Appeals
For the First Circuit
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Defendants, Appellants. ________________________
Nos. 10-2207 & 10-2214 DEAN HARA,
Plaintiff, Appellee/Cross-Appellant, NANCY GILL, ET AL.,
Plaintiffs, Appellees, KEITH TONEY, ET AL., Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants/Cross-Appellees,
HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t289 FDialeted F05ile/3d1:/0152/31P/a2g0e122 of 3E5ntry ID: 5645268
Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges.
Paul D. Clement with whom H. Christopher Bartolomucci, Conor B. Dugan, Nicholas J. Nelson, Bancroft PLLC, Kerry W. Kircher, General Counsel, Office of General Counsel, U.S. House of Representatives, Christine Davenport, Sr., Assistant Counsel, Katherine E. McCarron, Assistant Counsel, William Pittard, Assistant Counsel, and Kirsten W. Konar, Assistant Counsel, were on brief for intervenor-appellant, the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Robert E. Kopp, Michael Jay Singer, August E. Flentje and Benjamin S. Kingsley, Appellate Staff, Civil Division, Department of Justice, were on brief for the federal defendants.
Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, U.S. Conference of Catholic Bishops, Von G. Keetch, Alexander Dushku, R. Shawn Gunnarson, Kirton & McConkie and Carl H. Esbeck, Legal Counsel, Office of Governmental Affairs, National Association of Evangelicals, on brief for U.S. Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-day Saints; The Ethics and Religious Liberty Commission of the Southern Baptist Convention; The Lutheran Church-Missouri Synod; The Union of Orthodox Jewish Congregations of America; The Massachusetts Catholic Conference; The Brethren in Christ Church; The Christian and Missionary Alliance; The Conservative Congregational Christian Conference; The Evangelical Free Church of America; The Evangelical Presbyterian Church; The International Church of the Foursquare Gospel; The International Pentecostal Holiness Church; The Missionary Church; Open Bible Churches [USA]; The United Brethren in Christ Church; The Wesleyan Church, Amici Curiae.
John Anthony Simmons, Sr. and David Ramos on brief for American College of Pediatricians, Amicus Curiae.
Lawrence J. Joseph on brief for Eagle Forum Education & Legal Defense Fund, Amicus Curiae.
Paul Benjamin Linton, Special Counsel, Thomas More Society, Thomas Brejcha, President & Chief Counsel, Thomas More Society, and Christopher M. Gacek, Family Research Council, on brief for the Family Research Council, Amicus Curiae.
Kristen K. Waggoner and Ellis, Li & McKinstry PLLC on brief for Robert P. George, Sherif Girfis, and Ryan T. Anderson, Amici Curiae.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t389 FDialeted F05ile/3d1:/0152/31P/a2g0e123 of 3E5ntry ID: 5645268
David Austin R. Nimocks, Brian W. Raum, Dale Schowengerdt and Holly L. Carmichael, Alliance Defense Fund, on brief for Representative Lamar Smith, Amicus Curiae.
Mary E. McAlister, Stephen M. Crampton, Rena M. Lindevaldsen, Mathew D. Staver and Anita L. Staver, Liberty Counsel, on brief for Liberty Counsel, Amicus Curiae.
Thomas M. Fisher, Solicitor General, Office of the Indiana Attorney General, Gregory F. Zoeller, Attorney General, Office of the Indiana Attorney General, Bill Schuette, Attorney General, State of Michigan, Mark L. Shurtleff, Attorney General, State of Utah, John W. Suthers, Attorney General, State of Colorado, and Alan Wilson, Attorney General, State of South Carolina, on brief for the States of Indiana, Colorado, Michigan, South Carolina, and Utah, Amici Curiae.
John A. Eidsmoe, Roy S. Moore and Benjamin D. DuPré, Foundation for Moral Law, on brief for Foundation for Moral Law, Amicus Curiae.
George I. Goverman on brief pro se, Amicus Curiae. Russell D. Raskin, Raskin & Berman, Abba Cohen and Mordechai Biser, Agudath Israel of America, on brief for Agudath Israel of America, Amicus Curiae. William C. Duncan, Marriage Law Foundation, and Joshua K. Baker, National Organization for Marriage, on brief for National Organization for Marriage, Amicus Curiae. Steven W. Fitschen and Douglas E. Myers on brief for the National Legal Foundation, Amicus Curiae. Stephen C. Whiting and The Whiting Law Firm on brief for Massachusetts Family Institute, Amicus Curiae. Kevin T. Snider, Pacific Justice Institute, on brief for Pacific Justice Institute, Amicus Curiae. Eric C. Bohnet on brief for Concerned Women for America, Amicus Curiae. Gary G. Kreep on brief for National Association for Research & Therapy of Homosexuality (NARTH), Amicus Curiae. Mary L. Bonauto with whom Gary D. Buseck, Vickie L. Henry, Janson Wu, Gay & Lesbian Advocates & Defenders, Paul M. Smith, Luke C. Platzer, Matthew J. Dunne, Melissa A. Cox, Jenner & Block LLP, Claire Laporte, Ara B. Gershengorn, Matthew E. Miller, Amy Senier, Catherine Deneke, Foley Hoag LLP, David J. Nagle, Richard L. Jones, and Sullivan & Worcester LLP were on brief for plaintiffs, appellees Nancy Gill, et al., and plaintiff, appellee, crossappellant Dean Hara. Maura T. Healey, Assistant Attorney General, with whom Martha Coakley, Attorney General, Jonathan B. Miller, Assistant Attorney General, Christopher K. Barry-Smith, Assistant Attorney General, Mark C. Fleming, Felicia H. Ellsworth, Brian J. Boyle Jr., Alan E. Schoenfeld and Wilmer Cutler Pickering Hale and Dorr LLP were on brief for plaintiff, appellee Commonwealth of Massachusetts.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t489 FDialeted F05ile/3d1:/0152/31P/a2g0e124 of 3E5ntry ID: 5645268
William F. Sheehan, Goodwin Procter LLP and Nathalie F.P. Gilfoyle, American Psychological Association, on brief for the American Psychological Association, the Massachusetts Psychological Association, the American Psychiatric Association, the National Association of Social Workers and its Massachusetts Chapter, the American Medical Association, and the American Academy of Pediatrics, Amici Curiae.
Clifford H. Ruprecht, Catherine R. Connors, Frank H. Bishop and Pierce Atwood LLP on brief for historians Peter W. Bardaglio, Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman, Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary L. Shanley, Amy Dru Stanley and Barbara Young Welke, Amici Curiae.
Patricia A. Peard, Ronald W. Schneider, Jr., Bernstein Shur and Katharine K. Baker, Professor of Law, Chicago-Kent College of Law, on brief for Family Law Professors, Amici Curiae.
William L. Chapman, Emily Gray Rice, Orr & Reno, P.A., Joan Heifetz Hollinger, Lecturer-in-Residence, Child Advocacy Program, University of CA, Berkeley School of Law, Courtney Joslin, Acting Professor, UC Davis School of Law, and Katharine Silbaugh, Professor of Law and Law Alumni Scholar, on brief for Family and Child Welfare Law Professors, Amici Curiae.
Robert G. Young, Daryl J. Lapp, Edwards Wildman Palmer LLP, James D. Esseks, Joshua A. Block, American Civil Liberties Union Foundation, Shannon Minter, Christopher F. Stoll, National Center for Lesbian Rights, Jon W. Davidson, and Peter Renn, Lambda Legal, on brief for 31 Bar Associations, Public-Interest Organizations and Legal Service Organizations, Amici Curiae.
Mirian R. Nemetz, Kathleen Connery Dawe, Michael B. Kimberly, Mayer Brown LLP, and Heather C. Sawyer, Minority Counsel, Committee on the Judiciary, Ranking Members John Conyers, Jr. and Jerrold Nadler, on brief for Members of the U.S. House of RepresentativesIncluding Objecting Members of the Bipartisan Legal Advisory Group, Representatives Nancy Pelosi and Steny H. Hoyer, Amici Curiae.
Alan B. Morrison, George Washington Law School, Anne L. Weismann, Melanie Sloan, Citizens for Responsibility and Ethics in Washington, on brief for Citizens for Responsibility and Ethics in Washington, Amicus Curiae.
Sabin Willett, Beth I.Z. Boland and Bingham McCutchen LLP on brief for 70 Business, Professional and Municipal Employers, and Professional, Trade, and Civic Organizations Representing Employers, Amici Curiae.
Jacob C. Cohn, Jeffrey I. Pasek and Cozen O'Connor on brief for the Jewish Social Policy Action Network, Amicus Curiae.
James L. Linsey, Cohen, Weiss and Simon LLP, National Association of Letter Carriers, Judith A. Scott, General Counsel,
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t589 FDialeted F05ile/3d1:/0152/31P/a2g0e125 of 3E5ntry ID: 5645268
Nicole G. Berner, Associate General Counsel, Laurel R. Webb, Assistant General Counsel, Service Employees International Union, David Borer, General Counsel, Leisha A. Self, Staff Counsel, American Federation of Government Employees, John C. Dempsey, General Counsel, American Federation of State, County and Municipal Employeees, David Strom, General Counsel, American Federation of Teachers, Thomas R. Carpenter, General Counsel, American Federation of Television and Radio Artists, Edward J. Gilmartin, General Counsel, Association of Flight Attendants, Alan S. Gordon, General Counsel, Deborah Allton-Maher, Eastern Counsel, American Guild of Musical Artists, Patrick J. Szymanski, General Counsel, Change to Win, Mary K. O'Melveny, General Counsel, Communications Workers of America, National Education Association, Duncan Crabtree-Ireland, General Counsel, Danielle S. Van Lier, Assistant General Counsel, Screen Actors Guild, David Rosen, General Counsel, Transport Workers Union of America, Michael Nicholson, General Counsel, International Union, UAW, Nick Clark, General Counsel, United Food and Commercial Workers International Union, American Federation of Musicians, Clinton J. Miller III, General Counsel, Erika A. Diehl, Assistant General Counsel, United Transportation Union, Richard J. Brean, General Counsel, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, and Bradley T. Raymond, General Counsel, International Brotherhood of Teamsters, on brief for Labor Organizations, Amici Curiae.
Harvey J. Wolkoff, Jessica M. Lindemann, Russell P. Plato, Samuel P. Bickett, Ropes & Gray LLP, Robert O. Trestan, Steven C. Sheinberg, Steven M. Freeman, Deborah Bensinger, Anti-Defamation League, on brief for Anti-Defamation League, Andover Newton Theological School, California Council of Churches, California Faith for Equality, Central Conference of American Rabbis, General Synod of the United Church of Christ, Hadassah, the Women's Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Alliance for Law & Social Action, Jewish Reconstructionist Federation, MA Conference of the United Church of Christ, National Council of Jewish Women, People for the American Way Foundation, Society for Humanistic Judaism, Union for Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Legislative Ministry California, the Unitarian Universalist Ministers Association, the Universal Fellowship of Metropolitan Community Churches, and Women of Reform Judaism, Amici Curiae.
May 31, 2012
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t689 FDialeted F05ile/3d1:/0152/31P/a2g0e126 of 3E5ntry ID: 5645268

BOUDIN, Circuit Judge.

These appeals present

constitutional challenges to section 3 of the Defense of Marriage

Act ("DOMA"), 1 U.S.C. § 7, which denies federal economic and other

benefits to same-sex couples lawfully married in Massachusetts and

to surviving spouses from couples thus married. Rather than

challenging the right of states to define marriage as they see fit,

the appeals contest the right of Congress to undercut the choices

made by same-sex couples and by individual states in deciding who

can be married to whom.

In 1993, the Hawaii Supreme Court held that it might

violate the Hawaii constitution to deny marriage licenses to same-

sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993).

Although Hawaii then empowered its legislature to block such a

ruling, Haw. Const. art. I, § 23--which it did, Act of June 22,

1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev.

Stat. § 572-1)--the Hawaii decision was followed by legalization of

same-sex marriage in a small minority of states, some by statute and a few by judicial decision;1 many more states responded by banning same-sex marriage by statute or constitutional amendment.2

1E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
2E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May
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Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must--having only two operative paragraphs--be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for purposes of federal law:
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. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves
13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).
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federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA's opposite-sex marriage definition--such as Massachusetts' state Medicaid program and veterans' cemeteries.
3U.S. Census Bureau, Census Bureau Releases Estimates of Same-Sex Married Couples (Sept. 27, 2011), http://www.census.gov/newsroom/releases/archives/2010_census/cb11 -cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last visited May 22, 2012).
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t989 FDialeted F05ile/3d1:/0152/31P/a2g0e129 of 3E5ntry ID: 5645268
By combining the income of individuals in same-sex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth's argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court's judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification--discussed separately below-the federal defendants have throughout focused solely upon the district court's premise that DOMA is unconstitutional.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1809 FDileadte0F5/il3e1d/:1025/3P1a/g2e01120 of 3E5ntry ID: 5645268
The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a "heightened scrutiny" standard and that DOMA failed under that standard. It opposed the separate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department's about face while defense of the statute passed to a group of Republican leaders of the House of Representatives--the Bipartisan Legal Advisory Group ("the Legal Group")--who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and "legislative facts" bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1819 FDileadte0F5/il3e1d/:1025/3P1a/g2e01121 of 3E5ntry ID: 5645268
knowledge. Daggett v. Comm'n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state's refusal to recognize same-sex marriage violated
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federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Following Baker, "gay rights" claims prevailed in several well known decisions, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S.620 (1996),4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal "prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
4Lawrence struck down Texas' statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny--applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1839 FDileadte0F5/il3e1d/:1025/3P1a/g2e01123 of 3E5ntry ID: 5645268
Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving "suspect" classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications--race, alienage and national origin--require what the Court calls strict scrutiny, which entails both a compelling governmental interest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the "last resort of constitutional argument," Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual
5United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1849 FDileadte0F5/il3e1d/:1025/3P1a/g2e01124 of 3E5ntry ID: 5645268
basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955), without regard to Congress' actual motives. Beach Commc'ns, 508 U.S. at 314. Means need not be narrowly drawn to meet--or even be entirely consistent with--the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the socalled intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1859 FDileadte0F5/il3e1d/:1025/3P1a/g2e01125 of 3E5ntry ID: 5645268
to create a major new category of "suspect classification" for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded "Don't Ask, Don't Tell" policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications--in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer--a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.
However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1869 FDileadte0F5/il3e1d/:1025/3P1a/g2e01126 of 3E5ntry ID: 5645268
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions--not classic rational basis review--that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation's fit--finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a "bare congressional desire to harm a politically unpopular group." Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as applied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1879 FDileadte0F5/il3e1d/:1025/3P1a/g2e01127 of 3E5ntry ID: 5645268
disability too had no connection to alleged concerns about population density. All that remained were "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding." Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado's constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling "unprecedented" the "disqualification of a class of persons from the right to seek specific protection from the law," deemed the provision a "status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this--both favorably, City of Cleburne, 473 U.S. at 45155 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1889 FDileadte0F5/il3e1d/:1025/3P1a/g2e01128 of 3E5ntry ID: 5645268
circumstances of the case and not dependent entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential "rational basis" test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination. United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (citing City of Cleburne as an example). There is nothing remarkable about this: categories are often approximations and are themselves constructed by weighing of underlying elements. All three of the cited cases--Moreno, City of Cleburne and Romer--stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. As for burden, the combined effect of DOMA's restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples
6E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t1899 FDileadte0F5/il3e1d/:1025/3P1a/g2e01129 of 3E5ntry ID: 5645268

in their own and all other states. For those married same-sex

couples of which one partner is in federal service, the other cannot

take advantage of medical care and other benefits available to

opposite-sex partners in Massachusetts and everywhere else in the

country.

These burdens are comparable to those the Court found

substantial in Moreno, City of Cleburne, and Romer. Moreno, like

this case, involved meaningful economic benefits; City of Cleburne

involved the opportunity to secure housing; Romer, the chance to

secure equal protection of the laws on the same terms as other

groups. Loss of survivor's social security, spouse-based medical

care and tax benefits are major detriments on any reckoning;

provision for retirement and medical care are, in practice, the main

components of the social safety net for vast numbers of Americans.

Accordingly, we conclude that the extreme deference

accorded to ordinary economic legislation in cases like Lee Optical

would not be extended to DOMA by the Supreme Court; and without

insisting on "compelling" or "important" justifications or "narrow

tailoring," the Court would scrutinize with care the purported bases

for the legislation. Before providing such scrutiny, a separate

element absent in

Moreno, City of Cleburne, and

Romer--federalism--must be considered.

Federalism. In assailing DOMA, the plaintiffs and

especially the Commonwealth rely directly on limitations attributed

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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2809 FDileadte0F5/il3e1d/:1025/3P1a/g2e01220 of 3E5ntry ID: 5645268
to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations--such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)--Congress has provided its own definitions limited to the particular program or personnel involved. But no
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2819 FDileadte0F5/il3e1d/:1025/3P1a/g2e01221 of 3E5ntry ID: 5645268
precedent exists for DOMA's sweeping general "federal" definition of marriage for all federal statutes and programs.
Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the "germaneness" requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole, the
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2829 FDileadte0F5/il3e1d/:1025/3P1a/g2e01222 of 3E5ntry ID: 5645268
Supreme Court upheld a condition by which federal funds for highway construction depended on a state's adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2839 FDileadte0F5/il3e1d/:1025/3P1a/g2e01223 of 3E5ntry ID: 5645268
Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7 cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a "considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens").
True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
DOMA's Rationales. Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA, Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm.
7The majority, focusing on the related issue of fit, said that "a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating "because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination." Id. at 2520 (Thomas, J., concurring in part and dissenting in part).
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2849 FDileadte0F5/il3e1d/:1025/3P1a/g2e01224 of 3E5ntry ID: 5645268
on the Constitution of the H. Comm. on the Judiciary, 104th Cong.
(1996) ("Hearing"), and none of the testimony concerned DOMA's
effects on the numerous federal programs at issue. Some of the
odder consequences of DOMA testify to the speed with which it was
adopted.8
The statute, only a few paragraphs in length, is devoid
of the express prefatory findings commonly made in major federal
laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400;
21 U.S.C. § 801; 29 U.S.C. § 151; id. § 1001; 42 U.S.C. § 7401.
Accordingly, in discerning and assessing Congress' basis for DOMA
our main resort is the House Committee report and, in lesser
measure, to variations of its themes advanced in the briefs before
us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
8For example, DOMA's definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on anti-nepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2859 FDileadte0F5/il3e1d/:1025/3P1a/g2e01225 of 3E5ntry ID: 5645268
H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to
section 3--indeed, is antithetical to it--but was concerned solely with section 2, which reserved a state's power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality.
First, starting with the most concrete of the cited reasons--"preserving scarce government resources"--it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal
9Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5 559/06-21-samesexmarriage.pdf.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2869 FDileadte0F5/il3e1d/:1025/3P1a/g2e01226 of 3E5ntry ID: 5645268
protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group's brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem,
10The House Report refers obliquely to the importance of heterosexual marriage in "encouraging responsible procreation and child-rearing," H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that "heterosexual marriage provides the ideal structure within which to beget and raise children." Hearing, supra, at 1 (opening statement of Rep. Canady).
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2879 FDileadte0F5/il3e1d/:1025/3P1a/g2e01227 of 3E5ntry ID: 5645268
Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA's stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality "morally wrong"). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Finally, it has been suggested by the Legal Group's brief that, faced with a prospective change in state marriage laws, Congress was entitled to "freeze" the situation and reflect. But
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2889 FDileadte0F5/il3e1d/:1025/3P1a/g2e01228 of 3E5ntry ID: 5645268
the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report's own arguments--moral, prudential and fiscal--make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court's decision in Baehr, that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id. at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t2899 FDileadte0F5/il3e1d/:1025/3P1a/g2e01229 of 3E5ntry ID: 5645268
Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as "mere moral disapproval of an excluded group," Lawrence, 539 U.S. at 585 (O'Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3809 FDileadte0F5/il3e1d/:1025/3P1a/g2e01320 of 3E5ntry ID: 5645268
belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara's Health Benefits Claim. A distinct, if much narrower, issue is raised by Dean Hara, one of the Gill plaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3819 FDileadte0F5/il3e1d/:1025/3P1a/g2e01321 of 3E5ntry ID: 5645268
further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).
Hara was married under Massachusetts law to a nowdeceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman's Federal Employees' Health Benefit Plan ("FEHBP"). For this, (1) Hara would have to be an eligible "annuitant" under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for "self and family," which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management ("OPM") had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board ("MSPB" or "Board") and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3829 FDileadte0F5/il3e1d/:1025/3P1a/g2e01322 of 3E5ntry ID: 5645268
DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now--as at the time the district court issued its judgment--a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara's claim for FEHBP health enrollment because of the Congressman's failure to elect "self and family" coverage. Although the district court found DOMA unconstitutional, it refused to resolve Hara's health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district
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Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3839 FDileadte0F5/il3e1d/:1025/3P1a/g2e01323 of 3E5ntry ID: 5645268 court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals. It is so ordered.
-33-

Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3849 FDileadte0F5/il3e1d/:1025/3P1a/g2e01324 of 3E5ntry ID: 5645268
ADDENDUM
SECTION. 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"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.".
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
"1738C. Certain acts, records, and proceedings and the effect thereof.".
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
-34-

Case: 10-2204 CaDsoec1u:m09e-nctv: -01001310693-J8L5T384DocPumageen:t3859 FDileadte0F5/il3e1d/:1025/3P1a/g2e01325 of 3E5ntry ID: 5645268 (b) CLERICAL AMENDMENT.—The table of sections at the
beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: "7. Definition of 'marriage' and 'spouse'."
-35-

 
 Case: 10-22C0a4se 1D:0o9c-ucmv-e1n0t3: 0393-2JLTPaDgoec:u1mentD9a4te Filed:0077//0011//123013PageE1ntoryf 2ID: 5745378

United States Court of Appeals
For the First Circuit

No. 10-2204

COMMONWEALTH OF MASSACHUSETTS,

Plaintiff, Appellee,

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,

Nos. 10-2207 & 10-2214

Defendants, Appellants. ________________________
DEAN HARA,

Plaintiff, Appellee/Cross-Appellant,

NANCY GILL, ET AL.,

Plaintiffs, Appellees,

KEITH TONEY, ET AL.,

Plaintiffs,

v.

OFFICE OF PERSONNEL MANAGEMENT, ET AL.,

Defendants, Appellants/Cross-Appellees,

HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State,

Defendant.

MANDATE
Entered: July 1, 2013
In accordance with the judgment of May 31, 2012, and pursuant to Federal Rule of Appellate Procedure 41(a), this constitutes the formal mandate of this Court.

Case: 10-22C0a4se 1D:0o9c-ucmv-e1n0t3: 0393-2JLTPaDgoec:u2mentD9a4te Filed:0077//0011//123013PageE2ntoryf 2ID: 5745378 By the Court: /s/ Margaret Carter, Clerk
cc: Counsel of Record

 
 Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 1 of 23
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:09−cv−10309−JLT

Gill et al v. Office of Personnel Management et al Assigned to: Judge Joseph L. Tauro related Case: 1:09−cv−11156−JLT
Case in other court: First Circuit, 10−02207
First Circuit, 10−02214
Supreme Court of the United States, 12−00013 Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 03/03/2009 Date Terminated: 08/12/2010 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Nancy Gill

represented by Gary D. Buseck Gay &Lesbian Advocates &Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Fax: 617−426−3594 Email: gbuseck@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto Gay &Lesbian Advocates and Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Fax: 617−426−3590 Email: mbonauto@glad.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi Gay &Lesbian Advocates &Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Email: neshghi@glad.org TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Senier Foley Hoag LLP 155 Seaport Boulevard Seaport World Trade Center West Boston, MA 02210 617−832−3042 Fax: 617−832−7000 TERMINATED: 06/18/2012 ATTORNEY TO BE NOTICED

Catherine C. Deneke Foley Hoag LLP 155 Seaport Boulevard Seaport World Trade Center West Boston, MA 02210

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 2 of 23

617−832−3025 Email: cdeneke@foleyhoag.com ATTORNEY TO BE NOTICED

Claire Laporte Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210−2600 617−832−1000 Fax: 617−832−7000 Email: claporte@foleyhoag.com ATTORNEY TO BE NOTICED

Janson Wu Gay &Lesbian Advocates &Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−426−1350 Email: jwu@glad.org ATTORNEY TO BE NOTICED

Matthew E. Miller Foley Hoag LLP Seaport World Trade Center West 155 Seaport Boulevard Boston, MA 02210 617−832−3041 Fax: 617−832−7000 Email: mmiller@foleyhoag.com ATTORNEY TO BE NOTICED

Paul M. Smith Jenner &Block, LLP 1099 New York Avenue, NW Washington, DC 20001−4412 202−639−6060 Email: psmith@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Vickie L. Henry Gay &Lesbian Advocates &Defenders 30 Winter Street Suite 800 Boston, MA 02108 617−778−6967 Email: vhenry@glad.org ATTORNEY TO BE NOTICED

Plaintiff Marcelle Letourneau

represented by Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 3 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Senier (See above for address) TERMINATED: 06/18/2012 ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Martin Koski

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 4 of 23

ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff James Fitzgerald

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 5 of 23

ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Dean Hara

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Mary Ritchie

represented by Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 6 of 23

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

David J. Nagle Sullivan &Worcester LLP One Post Office Square Boston, MA 02109 617−338−2800 Fax: 617−338−2880 Email: dnagle@sandw.com ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard L. Jones Sullivan &Worcester LLP One Post Office Square Boston, MA 02109 617−338−2800 Email: rjones@sandw.com ATTORNEY TO BE NOTICED

William E. Halmkin Sullivan &Worcester LLP One Post Office Square Boston, MA 02109 617−338−2436 Fax: 617−338−2880 Email: WHalmkin@sandw.com ATTORNEY TO BE NOTICED

Plaintiff Kathleen Bush

represented by Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 7 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

David J. Nagle (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard L. Jones (See above for address) ATTORNEY TO BE NOTICED

William E. Halmkin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Melba Abreu

represented by Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

David J. Nagle (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard L. Jones (See above for address)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 8 of 23

ATTORNEY TO BE NOTICED

William E. Halmkin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Beatrice Hernandez

represented by Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

David J. Nagle (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Richard L. Jones (See above for address) ATTORNEY TO BE NOTICED

William E. Halmkin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jo Ann Whitehead

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 9 of 23

Plaintiff Bette Jo Green

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED
Janson Wu (See above for address) ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nima R. Eshghi (See above for address)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 10 of 23

TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Randell Lewis−Kendell

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 11 of 23

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Herbert Burtis

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Keith Toney TERMINATED: 07/31/2009

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 12 of 23

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janson Wu (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Albert Toney III TERMINATED: 07/31/2009

represented by Amy Senier (See above for address) TERMINATED: 06/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Laporte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gary D. Buseck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary L. Bonauto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 13 of 23

Plaintiff Marlin Nabors
Plaintiff Jonathan Knight
Plaintiff Mary Bowe−Shulman
Plaintiff Dorene Bowe−Shulman

Nima R. Eshghi (See above for address) TERMINATED: 06/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie L. Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janson Wu (See above for address) ATTORNEY TO BE NOTICED
represented by Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED
Gary D. Buseck (See above for address) ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED
Gary D. Buseck (See above for address) ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED
Gary D. Buseck (See above for address) ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Catherine C. Deneke (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 14 of 23

Gary D. Buseck (See above for address) ATTORNEY TO BE NOTICED
Paul M. Smith (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Office of Personnel Management
Defendant United States Postal Service
Defendant John E. Potter in his official capacity as the Postmaster General of the United States of America
Defendant Michael J Astrue in his official capacity as the Commisioner of the Social Security Administration Defendant Hillary Rodham Clinton in her official capacity as United States Secretary of State TERMINATED: 07/31/2009 Defendant Eric H. Holder, Jr. in his individual capacity as the United States Attorney General
Defendant United States of America
Intervenor Defendant

represented by W. Scott Simpson U.S. Department of Justice P.O. Box 883 Room 7210 Washington, DC 20044 202−514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 15 of 23

Representative Lamar Smith TERMINATED: 01/19/2011

represented by Philip D. Moran Law Offices of Philip D. Moran 265 Essex Street Suite 202 Salem, MA 01970 978−745−6085 Fax: 978−741−2572 Email: philipmoranesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/03/2009
03/03/2009 03/03/2009
03/03/2009 03/06/2009 03/09/2009
03/09/2009
03/30/2009
03/30/2009 03/30/2009 04/22/2009

# Docket Text
1 COMPLAINT against all defendants Filing fee: $ 350, receipt number 01010000000002319846, filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Keith Toney, Albert Toney III, nancy gill, marcelle letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Civil Cover Sheet, # 2 Supplement Local Category List)(Buseck, Gary) (Entered: 03/03/2009)
ELECTRONIC NOTICE of Case Assignment. Judge Joseph L. Tauro assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Collings (Duong, Diep) (Entered: 03/03/2009)
2 Summons Issued as to Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Hillary Rodham Clinton, Eric H. Holder, Jr., United States of America, U.S. Attorney and U.S. Attorney General Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Duong, Diep) (Entered: 03/03/2009)
3 General Order 09−1, dated January 6, 2009 regarding the E−Government Act and Personal Identifiers entered. (Duong, Diep) (Entered: 03/03/2009)
4 NOTICE of Appearance by William E. Halmkin on behalf of Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Halmkin, William) (Entered: 03/06/2009)
5 NOTICE of Appearance by Nima R. Eshghi on behalf of Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Keith Toney, Albert Toney III, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Eshghi, Nima) (Entered: 03/09/2009)
6 NOTICE of Appearance by Mary L. Bonauto on behalf of Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Keith Toney, Albert Toney III, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Bonauto, Mary) (Entered: 03/09/2009)
7 NOTICE of Appearance by Janson Wu on behalf of Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Keith Toney, Albert Toney III, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Wu, Janson) (Entered: 03/30/2009)
8 NOTICE of Appearance by David J. Nagle on behalf of Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Nagle, David) (Entered: 03/30/2009)
9 NOTICE of Appearance by Richard L. Jones on behalf of Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez (Jones, Richard) (Entered: 03/30/2009)
10 NOTICE of Appearance by Amy Senier on behalf of Nancy Gill, Marcelle Letourneau (Senier, Amy) (Entered: 04/22/2009)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 16 of 23

04/22/2009 04/22/2009 04/22/2009 05/01/2009 05/01/2009 06/22/2009 06/25/2009 07/31/2009 08/12/2009 08/13/2009
09/18/2009 09/18/2009 09/18/2009 09/22/2009 10/01/2009

11 NOTICE of Appearance by Matthew E. Miller on behalf of Nancy Gill, Marcelle Letourneau (Miller, Matthew) (Entered: 04/22/2009)
12 NOTICE of Appearance by Vickie L. Henry on behalf of Nancy Gill, Marcelle Letourneau (Henry, Vickie) (Entered: 04/22/2009)
13 NOTICE of Appearance by Claire Laporte on behalf of Nancy Gill, Marcelle Letourneau (Laporte, Claire) (Entered: 04/22/2009)
14 NOTICE of Voluntary Dismissal by Dean Hara (Buseck, Gary) (Entered: 05/01/2009)
15 NOTICE of Appearance by W. Scott Simpson on behalf of Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Hillary Rodham Clinton, Eric H. Holder, Jr., United States of America (Simpson, W.) (Entered: 05/01/2009)
16 STIPULATION AND PROPOSED ORDER REGARDING SCHEDULE by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Hillary Rodham Clinton, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 06/22/2009)
17 Judge Joseph L. Tauro: Endorsed Stipulation and ORDER re: 16 Stipulation filed by John E. Potter, Eric H. Holder, Jr., Michael J Astrue, Hillary Rodham Clinton, United States Postal Service, United States of America, Office of Personnel Management. (Abaid, Kimberly) (Entered: 06/26/2009)
18 First AMENDED COMPLAINT against all defendants by all named plaintiffs, filed by Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman.(Buseck, Gary) (Entered: 07/31/2009)
19 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of Paul M. Smith Filing fee $ 50, receipt number 01010000000002544474. by Nancy Gill.(Buseck, Gary) (Entered: 08/12/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 19 Motion for Leave to Appear Pro Hac Vice; Added Paul M. Smith for Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu and Beatrice Hernandez. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Abaid, Kimberly) (Entered: 08/13/2009)
20 MOTION to Dismiss by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America.(Simpson, W.) (Entered: 09/18/2009)
21 MEMORANDUM in Support re 20 MOTION to Dismiss filed by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 09/18/2009)
22 Consent MOTION for Leave to File Excess Pages by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America.(Simpson, W.) (Entered: 09/18/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 22 Motion for Leave to File Excess Pages (Lovett, Zita) (Entered: 09/22/2009)
23 STIPULATION And Proposed Order Regarding Schedule by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 10/01/2009)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 17 of 23

10/14/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009
11/17/2009 11/17/2009 11/17/2009

24 NOTICE of Voluntary Dismissal by Nancy Gill, Marcelle Letourneau (Buseck, Gary) (Entered: 10/14/2009)
25 MOTION for Summary Judgment by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez.(Buseck, Gary) (Entered: 11/17/2009)
26 Statement of Material Facts L.R. 56.1 re 25 MOTION for Summary Judgment filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
27 STATEMENT of facts re 25 MOTION for Summary Judgment Non−Adjudicative. (Buseck, Gary) (Entered: 11/17/2009)
28 MEMORANDUM in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss Opposition filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
29 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Nancy Gill and Marcelle Letourneau filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
30 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Martin Koski and James Fitzgerald filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
31 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Dean T. Hara filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − MSPB Initial Decision, # 2 Exhibit B − OPM Final Decision)(Buseck, Gary) (Entered: 11/17/2009)
32 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Mary Ritchie and Kathleen Bush filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
33 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Melba Abreu and Beatrice Hernandez filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
34 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Marlin Nabors and Jonathan Knight filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 18 of 23

11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009 11/17/2009

35 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Mary and Dorene Bowe−Shulman filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
36 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Jo Ann Whitehead and Bette Jo Green filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
37 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Randell Lewis−Kendell filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
38 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Herbert Burtis filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 11/17/2009)
39 AFFIDAVIT in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss of Michael Lamb, Ph.D. filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − CV, # 2 Exhibit B − Organizational Statements)(Buseck, Gary) (Entered: 11/17/2009)
40 AFFIDAVIT in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss of Gary M. Segura, Ph.D. filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − CV, # 2 Exhibit B − Sources)(Buseck, Gary) (Entered: 11/17/2009)
41 AFFIDAVIT in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss of Gregory M. Herek, Ph.D. filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − References, # 2 Exhibit B − CV)(Buseck, Gary) (Entered: 11/17/2009)
42 AFFIDAVIT in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss of George Chauncey, Ph.D. filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − CV)(Buseck, Gary) (Entered: 11/17/2009)
43 AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Gary D. Buseck filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − GAO Report 1997, # 2 Exhibit B − GAO Report 2004, # 3 Exhibit C − CBO Report 2004, # 4 Exhibit D − H. Rep.

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 19 of 23

11/17/2009
11/19/2009
11/23/2009 11/23/2009 12/04/2009 12/04/2009 12/09/2009
12/15/2009 12/17/2009 12/18/2009 12/18/2009
12/18/2009 12/21/2009 01/29/2010

104−664, # 5 Exhibit E − Email)(Buseck, Gary) (Entered: 11/17/2009)
44 Consent MOTION for Leave to File Excess Pages by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez.(Buseck, Gary) (Entered: 11/17/2009)
45 AFFIDAVIT in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss of Gregory M. Herek, Ph.D. (Corrected) filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − References, # 2 Exhibit B − CV)(Buseck, Gary) (Entered: 11/19/2009)
46 Judge Joseph L. Tauro: ORDER entered. STIPULATION AND ORDER Re: Schedule(Abaid, Kimberly) (Entered: 11/23/2009)
Set/Reset Deadlines as to 20 MOTION to Dismiss. Responses due by 11/17/2009 Replies due by 1/29/2010. (Abaid, Kimberly) (Entered: 11/23/2009)
47 MOTION to Stay re 25 MOTION for Summary Judgment by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America.(Simpson, W.) (Entered: 12/04/2009)
48 MEMORANDUM in Support re 47 MOTION to Stay re 25 MOTION for Summary Judgment filed by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 12/04/2009)
49 Opposition re 47 MOTION to Stay re 25 MOTION for Summary Judgment filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 12/09/2009)
50 Letter/request (non−motion) from W. Scott Simpson Counsel for Defendants, re: forthcoming motion for leave to file reply. (Simpson, W.) (Entered: 12/15/2009)
51 CERTIFICATE OF SERVICE by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America re 50 Letter/request (non−motion). (Simpson, W.) (Entered: 12/17/2009)
52 Consent MOTION for Leave to File Reply by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Attachments: # 1 Proposed Reply)(Simpson, W.) (Entered: 12/18/2009)
Judge Joseph L. Tauro: Electronic ORDER entered granting 52 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 12/18/2009)
53 REPLY to Response to 47 MOTION to Stay re 25 MOTION for Summary Judgment filed by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 12/18/2009)
Judge Joseph L. Tauro: Electronic ORDER entered denying 47 Motion to Stay (Lovett, Zita) (Entered: 12/21/2009)
54 REPLY to Response to 20 MOTION to Dismiss filed by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 01/29/2010)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 20 of 23

01/29/2010 01/29/2010
01/29/2010 02/16/2010
02/16/2010
03/09/2010 03/16/2010 03/16/2010
03/23/2010 03/23/2010 03/24/2010
03/24/2010

55 Reply in Support of Motion to Dismiss and Opposition re 25 MOTION for Summary Judgment filed by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) Modified docket text on 2/16/2010 (Abaid, Kimberly). (Entered: 01/29/2010)
56 Response to Plaintiffs' Statement of Undisputed Facts Response by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America to 55 Opposition to Motion. (Attachments: # 1 Expedited Appeal Agreement − Whitehead, # 2 Expedited Appeal Agreement − Lewis−Kendell, # 3 Expedited Appeal Agreement − Burtis)(Simpson, W.) (Entered: 01/29/2010)
57 Consent MOTION for Leave to File Excess Pages by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America.(Simpson, W.) (Entered: 01/29/2010)
58 REPLY to Response to 25 MOTION for Summary Judgment filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Buseck, Gary) (Entered: 02/16/2010)
59 Second AFFIDAVIT in Support re 25 MOTION for Summary Judgment of Gary D. Buseck filed by Jo Ann Whitehead, Bette Jo Green, Randell Lewis−Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Mary Bowe−Shulman, Dorene Bowe−Shulman, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez. (Attachments: # 1 Exhibit A − OPM Initial Decision, # 2 Exhibit B − Hara Letter 5/4/09)(Buseck, Gary) (Entered: 02/16/2010)
ELECTRONIC NOTICE of Hearing :Motion Hearing set for 5/26/2010 10:30 AM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 03/09/2010)
60 STIPULATION re Notice of Hearing by Office of Personnel Management, United States Postal Service, John E. Potter, Michael J Astrue, Eric H. Holder, Jr., United States of America. (Simpson, W.) (Entered: 03/16/2010)
Judge Joseph L. Tauro: Electronic ORDER entered granting 57 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/16/2010)
61 Judge Joseph L. Tauro: ORDER entered. STIPULATION AND ORDER(Geraldino−Karasek, Clarilde) (Entered: 03/23/2010)
Set/Reset Deadlines as to 20 MOTION to Dismiss, 25 MOTION for Summary Judgment. Motion Hearing set for 5/6/2010 10:30 AM in Courtroom 22 before Judge Joseph L. Tauro. (Geraldino−Karasek, Clarilde) (Entered: 03/23/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 44 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Lovett, Zita) (Entered: 03/24/2010)
62 MEMORANDUM in Support re 25 MOTION for Summary Judgment, 20 MOTION to Dismiss Opposition − Leave to File Granted On March 24, 2010 filed by Melba Abreu, Dorene Bowe−Shulman, Mary Bowe−Shulman, Herbert Burtis, Kathleen Bush, James Fitzgerald, Nancy Gill, Bette Jo Green, Dean Hara, Beatrice Hernandez, Jonathan Knight, Martin Koski, Marcelle Letourneau, Randell Lewis−Kendell, Marlin Nabors, Mary Ritchie, Jo Ann Whitehead. (Buseck, Gary) (Entered: 03/24/2010)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 21 of 23

05/06/2010
05/18/2010
05/18/2010 05/25/2010 05/25/2010 06/01/2010 06/18/2010 07/08/2010 07/08/2010 08/12/2010

ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: reserving ruling on 20 Motion to Dismiss; reserving ruling on 25 Motion for Summary Judgment; Motion Hearing held on 5/6/2010 re 25 MOTION for Summary Judgment filed by Marlin Nabors, Herbert Burtis, Dean Hara, Dorene Bowe−Shulman, James Fitzgerald, Bette Jo Green, Melba Abreu, Jonathan Knight, Marcelle Letourneau, Beatrice Hernandez, Mary Bowe−Shulman, Kathleen Bush, Mary Ritchie, Nancy Gill, Martin Koski, Jo Ann Whitehead, Randell Lewis−Kendell, 20 MOTION to Dismiss filed by Office of Personnel Management, Eric H. Holder, Jr., United States of America, John E. Potter, Michael J Astrue, United States Postal Service. (Court Reporter: Carol Scott at 617−330−1377.)(Attorneys present: Bonauto,Buseck,Henry,Smith,pltfs;Simpson,deft.) (Lovett, Zita) (Entered: 05/06/2010)
63 Transcript of Summary Judgment Motion Hearing held on May 6, 2010, before Judge Joseph L. Tauro. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at 617−330−1377 Redaction Request due 6/8/2010. Redacted Transcript Deadline set for 6/18/2010. Release of Transcript Restriction set for 8/16/2010. (Scalfani, Deborah) (Main Document 63 replaced on 6/3/2010) (Scalfani, Deborah). (Entered: 05/18/2010)
64 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 05/18/2010)
65 AMENDED COMPLAINT with Defendants' Consent against Eric H. Holder, Jr., United States Postal Service, United States of America, John E. Potter, Office of Personnel Management, Michael J Astrue, filed by Melba Abreu, Dorene Bowe−Shulman, Mary Bowe−Shulman, Herbert Burtis, Kathleen Bush, James Fitzgerald, Nancy Gill, Bette Jo Green, Dean Hara, Beatrice Hernandez, Jonathan Knight, Martin Koski, Marcelle Letourneau, Randell Lewis−Kendell, Marlin Nabors, Mary Ritchie, Jo Ann Whitehead.(Buseck, Gary) (Entered: 05/25/2010)
66 Amended AFFIDAVIT of Melba Abreu and Beatrice Hernandez in Support re 25 MOTION for Summary Judgment filed by Melba Abreu, Dorene Bowe−Shulman, Mary Bowe−Shulman, Herbert Burtis, Kathleen Bush, James Fitzgerald, Nancy Gill, Bette Jo Green, Dean Hara, Beatrice Hernandez, Jonathan Knight, Martin Koski, Marcelle Letourneau, Randell Lewis−Kendell, Marlin Nabors, Mary Ritchie, Jo Ann Whitehead. (Buseck, Gary) (Entered: 05/25/2010)
67 NOTICE of Withdrawal of Appearance by Gary D. Buseck of Nima R. Eshghi (Buseck, Gary) (Entered: 06/01/2010)
68 NOTICE of Appearance by Catherine C. Deneke on behalf of Melba Abreu, Dorene Bowe−Shulman, Mary Bowe−Shulman, Herbert Burtis, Kathleen Bush, James Fitzgerald, Nancy Gill, Bette Jo Green, Dean Hara, Beatrice Hernandez, Jonathan Knight, Martin Koski, Marcelle Letourneau, Randell Lewis−Kendell, Marlin Nabors, Mary Ritchie, Jo Ann Whitehead (Deneke, Catherine) (Entered: 06/18/2010)
69 Judge Joseph L. Tauro: ORDER entered. For the reasons set forth in the accompanying Memorandum, this court hereby orders that: Defendants Motion to Dismiss [#20] is ALLOWED IN PART and DENIED IN PART. Specifically, Defendants Motion to Dismiss [#20] is DENIED as to all claims, except Plaintiff Dean Haras claim for enrollment in the Federal Employees Health Benefits Plan.Plaintiffs Motion for Summary Judgment [#25] is ALLOWED.IT IS SO ORDERED. (Geraldino−Karasek, Clarilde) (Entered: 07/08/2010)
70 Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered. (Geraldino−Karasek, Clarilde) (Entered: 07/08/2010)
71 Judge Joseph L. Tauro: JUDGMENT ORDER entered. (Geraldino−Karasek, Clarilde ) (Entered: 08/12/2010)

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 22 of 23

08/12/2010 08/13/2010
08/17/2010 08/17/2010 08/17/2010 10/05/2010 10/05/2010 10/05/2010 10/05/2010
10/12/2010
10/13/2010 10/13/2010 10/13/2010

Civil Case Terminated. (Geraldino−Karasek, Clarilde) (Entered: 08/12/2010)
72 Joint MOTION to Alter Judgment and Unopposed Motion for Stay Pending Appeal by Melba Abreu, Dorene Bowe−Shulman, Mary Bowe−Shulman, Herbert Burtis, Kathleen Bush, James Fitzgerald, Nancy Gill, Bette Jo Green, Dean Hara, Beatrice Hernandez, Jonathan Knight, Martin Koski, Marcelle Letourneau, Randell Lewis−Kendell, Marlin Nabors, Mary Ritchie, Jo Ann Whitehead. (Attachments: # 1 Proposed Amended Judgment, # 2 Text of Proposed Order for Stay Pending Appeal)(Buseck, Gary) (Entered: 08/13/2010)
73 Judge Joseph L. Tauro: ORDER entered ALLOWED 72 Motion to Alter Judgment and Unopposed Motion for Stay Pending Appeal. (Geraldino−Karasek, Clarilde) (Entered: 08/18/2010)
74 Judge Joseph L. Tauro: AMENDED JUDGMENT entered. (Geraldino−Karasek, Clarilde) (Entered: 08/18/2010)
75 Judge Joseph L. Tauro: ORDER entered. The Defendants' Motion is GRANTED and the JUDGMENT in this action is STAYED pending the disposition of any Appeal filed by the Defendants. (Geraldino−Karasek, Clarilde) (Entered: 08/18/2010)
76 MOTION to Intervene by Lamar Smith. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Notice of Appeal)(Moran, Philip) (Entered: 10/05/2010)
77 MEMORANDUM in Support re 76 MOTION to Intervene filed by Lamar Smith. (Moran, Philip) (Entered: 10/05/2010)
78 NOTICE of Appearance by Philip D. Moran on behalf of Lamar Smith (Moran, Philip) (Entered: 10/05/2010)
79 MOTION for Leave to Appear Pro Hac Vice for admission of Brian W. Raum, Byron J. Babione, Dale Schowengerdt Filing fee: $ 150, receipt number 0101−3096041 by Lamar Smith. (Attachments: # 1 Certificate of Brian W. Raum for Leave to Appear Pro Hac Vice, # 2 Certificate of Byron J. Babione for Leave to Appear Pro Hac Vice, # 3 Certificate of Dale Schowengerdt for Leave to Appear Pro Hac Vice, # 4 Proposed Order)(Moran, Philip) (Entered: 10/05/2010)
80 NOTICE OF APPEAL as to 74 Order by Michael J Astrue, Eric H. Holder, Jr., Office of Personnel Management, John E. Potter, United States Postal Service, United States of America Fee Status: US Government. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/1/2010. (Simpson, W.) (Entered: 10/12/2010)
81 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 80 Notice of Appeal, (Ramos, Jeanette) (Entered: 10/13/2010)
USCA Case Number 10−2207 for 80 Notice of Appeal, filed by John E. Potter, Eric H. Holder, Jr., Michael J Astrue, United States Postal Service, United States of America, Office of Personnel Management. (Ramos, Jeanette) (Entered: 10/13/2010)
82 NOTICE OF CROSS APPEAL as to 70 Memorandum &ORDER, 69 Order on Motion to Dismiss, Order on Motion for Summary Judgment,, 74 Order by Dean Hara. ( Reason the filer is exempt from the payment of the fee: Filing Fee paid.) NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing

Case: 1:09-cv-10309-JLT As of: 02/12/2015 12:23 PM EST 23 of 23

10/14/2010 10/14/2010 10/18/2010 10/18/2010 10/22/2010 01/19/2011 01/19/2011 05/31/2012
05/31/2012
06/13/2012 06/18/2012 07/03/2012 06/27/2013 07/01/2013

by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/2/2010. (Buseck, Gary) (Entered: 10/13/2010)
83 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 82 Notice of Cross Appeal, (Ramos, Jeanette) (Entered: 10/14/2010)
84 USCA Case Number 10−2214 for 82 Notice of Cross Appeal, filed by Dean Hara. (Ramos, Jeanette) (Entered: 10/14/2010)
85 NOTICE OF ATTORNEY PAYMENT OF FEES as to 82 Notice of Cross Appeal,,, by Plaintiff Dean Hara. Filing fee $ 455, receipt number 0101−3112453. Payment Type : APPEAL. (Buseck, Gary) (Entered: 10/18/2010)
86 NOTICE of Withdrawal re 76 MOTION to Intervene by Lamar Smith (Moran, Philip) (Modified on 10/20/2010 to correct docket entry Geraldino−Karasek, Clarilde). (Entered: 10/18/2010)
87 NOTICE of Withdrawal of Appearance by Gary D. Buseck of Samuel P. Bickett (Buseck, Gary) (Entered: 10/22/2010)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered FINDING AS MOOT 76 Motion to Intervene pursuant to 86 Notice of Withdrawal Motion filed on 10/18/2010. (Geraldino−Karasek, Clarilde) (Entered: 01/19/2011)
Judge Joseph L. Tauro: ELECTRONIC ORDER entered FINDING AS MOOT 79 Motion for Leave to Appear Pro Hac Vice. (Geraldino−Karasek, Clarilde) (Entered: 01/19/2011)
88 USCA Judgment as to 82 Notice of Cross Appeal, filed by Dean Hara, 80 Notice of Appeal, filed by John E. Potter, Eric H. Holder, Jr., Michael J Astrue, United States Postal Service, United States of America, Office of Personnel Management. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals. Judgment issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
89 OPINION of USCA as to 82 Notice of Cross Appeal, filed by Dean Hara, 80 Notice of Appeal, filed by John E. Potter, Eric H. Holder, Jr., Michael J Astrue, United States Postal Service, United States of America, Office of Personnel Management. Opinion issued in the USCA 5/31/2012 (Ramos, Jeanette) (Entered: 05/31/2012)
90 Letter/Non−motion) regarding ruling on case from Kristopher Kadrimas. (Geraldino−Karasek, Clarilde) (Entered: 06/14/2012)
91 NOTICE of Withdrawal of Appearance by Amy Senier (Senier, Amy) (Entered: 06/18/2012)
92 Case Appealed to Supreme Court of the United States, Case Number 12−13. (Paine, Matthew) (Entered: 06/28/2013)
93 Order entered from the U.S. Supreme Court. The Petition for a Writ of Certiorari is Denied. (Paine, Matthew) (Entered: 06/28/2013)
94 MANDATE of USCA as to 82 Notice of Cross Appeal filed by Dean Hara, 80 Notice of Appeal filed by John E. Potter, Eric H. Holder, Jr., Michael J Astrue, United States Postal Service, United States of America, Office of Personnel Management. Appeal 82 , 80 Terminated (Paine, Matthew) (Entered: 07/02/2013)

 
 Nos. 10-2204, 10-2207, and 10-2214
IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ______________________
COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants-Appellants. __________________________________________
DEAN HARA, Plaintiff-Appellee/Cross-Appellant,
NANCY GILL, et al., Plaintiffs-Appellees,
v.
OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees.
__________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS __________________________________________
SUPERSEDING BRIEF FOR THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL. __________________________________________
TONY WEST As s is tan t Atto rn e y Ge n e ral
CARMEN M. ORTIZ Un ite d State s Atto rn e y
ROBERT E. KOPP (202) 514-3311 MICHAEL JAY SINGER (202) 514-5432 AUGUST E. FLENTJE (202) 514-3309 BENJAMIN S. KINGSLEY (202) 353-8253 Atto rn e y s , Ap p e llate Staff Civil Divisio n U.S. De p artm e n t o f Ju s tic e 950 Pe n n s y lv an ia Av e ., N.W., Ro o m 7261 Was h in g to n , D.C. 20530-0001 ______________________________________________________________________________ ______________________________________________________________________________

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION ................................................................................. 1

STATEMENT OF THE ISSUES ....................................................................................... 2

STATUTES AND REGULATIONS ................................................................................. 2

STATEMENT OF THE CASE .......................................................................................... 2

STATEMENT OF THE FACTS ........................................................................................ 4

I. Statutory Background ..................................................................................... 4

II. Facts and Prior Proceedings .......................................................................... 5

A. Gill v . Office of Personnel Management ................................................... 5

1. Factual Background ................................................................. 5

2. Prior Proceedings ................................................................... 11

B. Massachusetts v. HHS .......................................................................... 14

1. Factual Background ............................................................... 14

2. Prior Proceedings ................................................................... 20

SUMMARY OF ARGUMENT ......................................................................................... 21

STANDARD OF REVIEW ............................................................................................... 24

ARGUMENT ........................................................................................................................ 24

I. DOMA Violates Equal Protection ............................................................. 24

A. Plaintiffs’ Equal Protection Challenge to DOMA Is Subject to Heightened Scrutiny under Supreme Court Precedent ................................................................................. 25

1. Gays and Lesbians Are a Suspect or QuasiSuspect Class under the Relevant Factors Identified by the Supreme Court ......................................... 28
i. Gays and Lesbians Have Been Subject to a History of Discrimination ................... 28
a. Discrimination by the Federal Government .................................................... 30
b. Discrimination by State and Local Governments .................................................. 33
c. Discrimination by Private Parties ................ 37
ii. Gays and Lesbians Exhibit Immutable Characteristics that Distinguish Them as a Group ................................................................... 39
iii. Gays and Lesbians Are Minorities with Limited Political Power ............................................. 41
iv. Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society ....................... 43
B. DOMA Fails Heightened Scrutiny ................................................. 45
II. DOMA Violates the Spending Clause by Imposing an Unconstitutional Condition on the Receipt of Federal Funds ............... 53
III. DOMA Does Not Violate the Tenth Amendment by Interfering with State Sovereignty .............................................................. 55
CONCLUSION .................................................................................................................... 62
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
- ii -

ADDENDUM - iii -

TABLE OF AUTHORITIES

Cases:

Page

Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998) ................... 41

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ........................................................................................................ 58

Atlantic Fish Spotters Ass’n v. Evans, 321 F.3d 220 (1st Cir. 2003) .......................................................................................... 58

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ...................................................................................... 26

Baker v. Nelson, 409 U.S. 810 (1972) ........................................................................................................ 26

Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev’d, 769 F.2d 289 (5th Cir. 1985) .............. 34

Bd. of Educ. v. Calderon, 110 Cal. Rptr. 916 (1973) ............................................................................................... 34

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) ............................................................................ 27, 28, 29

Boggs v. Boggs, 520 U.S. 833 (1997) ........................................................................................................ 59

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................................................ 24

Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) ............................................................................................. 35

Boutilier v. INS, 387 U.S. 118 (1967) .................................................................................................. 32, 33

- iv -

Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997) ........................................................................................ 35
Bowen v. Gilliard, 483 U.S. 587 (1987) .................................................................................................. 22, 27
Bowers v. Hardwick, 478 U.S. 186 (1986) ........................................................................................... 27, 29, 47
Burton v. Cascade Sch. Dist. Union High Sch., No.5, 512 F.2d 850 (9th Cir. 1975) ................................................................................... 33, 34
Calhoun v. Pennington, No. 09-3286 (N.D. Ga.) ................................................................................................. 36
Childers v. Dallas Police Dep’t, 513 F. Supp. 134 (N.D. Tex. 1981), aff’d without opinion, 669 F.2d 732 (5th Cir. 1982) ........................................................ 33
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................................................. 22, 24, 25, 27, 43, 44, 45
City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) ................................................................................ 34
Clark v. Jeter, 486 U.S. 456 (1988) .................................................................................................. 25, 46
College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ........................................................................................................ 53
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ............................................................................... 22, 24, 27
Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973) ........................................................................................................ 48
Egelhoff v. Egelhoff, 532 U.S. 141 (2001) ........................................................................................................ 59
- v -

Equality Found. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) ...................................................................................... 28, 37
Frontiero v. Richardson, 411 U.S. 677 (1973) .................................................................................................. 38, 43
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) ........................................................................................................ 57
Gaylord v. Tacoma Sch. Dist. No. 10, 559 P.2d 1340 (Wash. 1977) .......................................................................................... 33
Graham v. Richardson, 403 U.S. 365 (1971) ........................................................................................................ 52
Ex parte H.H., 830 So. 2d 21 (Ala. 2002) ............................................................................................... 34
Hara v. OPM, No. 09-3134 (Fed. Cir.) .................................................................................................. 12
Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ....................................................................................... 39
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ...................................................................... 27, 28, 29, 39
Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ........................................................................................................ 59
Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) ........................................................................................................ 57
Irvis v. Scott, 318 F. Supp. 1246 (M.D. Pa. 1970) .............................................................................. 36
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ......................................................................................... 28
- vi -

Lawrence v. Texas, 539 U.S. 558 (2003) ........................................................................ 26, 27, 29, 41, 45, 48
Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569 (N.D. Cal. 1982), aff’d Hill v. INS, 714 F.2d 1470 (9th Cir. 1983) .......................................................... 32
Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) ....................................................................................... 28
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ................................................................................................ 42
Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ........................................................................................................ 44
Mathews v. Lucas, 427 U.S. 495 (1976) ........................................................................................................ 40
Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270 (10th Cir. 1984) ..................................................................................... 28
National League of Cities v. Usery, 426 U.S. 833 (1976) .................................................................................................. 21, 57
New York v. United States, 505 U.S. 144 (1992) ................................................................................................. 55, 56
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) ....................................................................................................... 53, 55
Printz v. United States, 521 U.S. 898 (1997) .................................................................................................. 53, 56
Pryor v. Mun. Court, 599 P.2d 636 (Cal. 1979) ................................................................................................ 36
Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998) ........................................................................................... 35
- vii -

Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996) ...................................................................................... 27, 28
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) ........................................................................................................ 25
Roe v. Roe, 324 S.E.2d 691 (Va. 1985) ............................................................................................. 35
Romer v. Evans, 517 U.S. 620 (1996) ........................................................................................... 26, 45, 48
Rostker v. Goldberg, 453 U.S. 57 (1981) ..................................................................................................... 27, 28
Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) ..................................................................................... 34
South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................................. 53, 54
St. Paul Citizens for Human Rights v. City Council of the City of St. Paul, 289 N.W.2d 402 (Minn. 1979) ...................................................................................... 37
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................................................................................... 27, 28
Strauss v. Horton, 207 P.3d 48 (Cal. 2009) .................................................................................................. 42
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ...................................................................................... 27, 28
United States v. Ahlers, 305 F.3d 54 (1st Cir. 2002) ............................................................................................ 58
United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) ........................................................................... 24, 56, 57
- viii -

United States v. Darby, 312 U.S. 100 (1941) ........................................................................................................ 56
United States v. Lewko, 269 F.3d 64 (1st Cir. 2001) ...................................................................................... 56, 60
United States v. Meade, 175 F.3d 215 (1st Cir. 1999) .................................................................................... 56, 61
United States v. Virginia (“VMI”), 518 U.S. 515 (1996) ........................................................................................... 26, 46, 49
United States v. Volungus, 595 F.3d 1 (1st Cir. 2010) .............................................................................................. 24
Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990) ........................................................................................................ 15
Woodard v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 27, 28
Constitution:
Art. I, § 8, cl. 1 ............................................................................................................ 3, 53, 54
U.S. Const. amend. X ........................................................................................................... 55
Statutes:
1 U.S.C. § 7 ........................................................................................................................ 5, 16
5 U.S.C. § 8101(6)-(11) ......................................................................................................... 60
5 U.S.C. § 8341(a)(1)(A)-(a)(2)(A) ...................................................................................... 60
5 U.S.C. § 8901(3)(B) .............................................................................................................. 7
5 U.S.C. § 8901(5) ................................................................................................................... 7
- ix -

5 U.S.C. § 8905 ........................................................................................................................ 7 5 U.S.C. § 8906 .................................................................................................................... 6, 7 5 U.S.C. § 8951 ........................................................................................................................ 8 5 U.S.C. § 8952 ........................................................................................................................ 8 5 U.S.C. § 8956(a) ................................................................................................................... 8 5 U.S.C. § 8958(a) ................................................................................................................... 8 5 U.S.C. § 8981 ........................................................................................................................ 8 5 U.S.C. § 8982 ........................................................................................................................ 8 5 U.S.C. § 8986(a) ................................................................................................................... 8 5 U.S.C. § 8988(a) ................................................................................................................... 8 5 U.S.C. § 8951(2) ................................................................................................................... 8 5 U.S.C. § 8981(2) ................................................................................................................... 8 7 U.S.C. § 2012(n)(1)(B) ....................................................................................................... 59 8 U.S.C. § 1186a(b)(1)(A)(i) ................................................................................................. 59 10 U.S.C. § 654 ................................................................................................................ 27, 32 18 U.S.C. § 228(a)(1) ............................................................................................................. 60 18 U.S.C. § 228(a)(3) ............................................................................................................. 61 18 U.S.C. § 922(g)(8) ............................................................................................................ 61 26 U.S.C. § 1(a) ...................................................................................................................... 11
- x -

26 U.S.C. § 1(b) ..................................................................................................................... 11 26 U.S.C. § 1(c) ...................................................................................................................... 11 26 U.S.C. § 106 ...................................................................................................................... 19 26 U.S.C. § 125 ........................................................................................................................ 8 26 U.S.C. § 3121(u) ............................................................................................................... 19 26 U.S.C. § 3111(b) ............................................................................................................... 19 26 U.S.C. § 6013(a) ............................................................................................................... 11 26 U.S.C. § 7703(b) ........................................................................................................ 59, 60 28 U.S.C. § 1291 ...................................................................................................................... 2 28 U.S.C. § 1331 ...................................................................................................................... 1 28 U.S.C. § 1738C ................................................................................................................... 4 38 U.S.C. § 101(3) ................................................................................................................. 60 38 U.S.C. § 2408 .................................................................................................................... 18 38 U.S.C. § 2408(b)(3) .......................................................................................................... 18 38 U.S.C. § 2408(c) ............................................................................................................... 18 42 U.S.C. § 402 ........................................................................................................................ 9 42 U.S.C. § 402(b) ................................................................................................................... 9 42 U.S.C. § 402(c) ................................................................................................................... 9 42 U.S.C. § 402(e) ................................................................................................................. 10 42 U.S.C. § 402(f) .................................................................................................................. 10
- xi -

42 U.S.C. § 402(f)(1) ............................................................................................................. 10 42 U.S.C. § 402(f)(3) ............................................................................................................. 10 42 U.S.C. § 402(i) .................................................................................................................. 10 42 U.S.C. § 413(a) ............................................................................................................. 9, 10 42 U.S.C. § 414 ........................................................................................................................ 9 42 U.S.C. § 414(a) ................................................................................................................. 10 42 U.S.C. § 414(b) ................................................................................................................. 10 42 U.S.C. § 415 ........................................................................................................................ 9 42 U.S.C. § 416(a)-(g) ........................................................................................................... 60 42 U.S.C. § 901 ........................................................................................................................ 9 42 U.S.C. § 902 ........................................................................................................................ 9 42 U.S.C. §§ 1396 et seq ......................................................................................................... 15 42 U.S.C. § 1396a(a) ............................................................................................................. 15 42 U.S.C. § 1396a(a)(1) et seq. .............................................................................................. 16 42 U.S.C. § 1396a(a)(17) ....................................................................................................... 16 42 U.S.C. § 1396b(a)(1) .................................................................................................. 15, 16 42 U.S.C. § 1396d(b) ....................................................................................................... 15, 16 Ch. 29, § 3, 39 Stat. 874 (1917) ........................................................................................... 32 Pub. L. No. 101-649, 104 Stat. 4978 .................................................................................. 33 111 P.L. 321, 124 Stat. 3515 (2010) .................................................................................... 32
- xii -

Mass. Gen. Laws ch. 118E, § 61 ......................................................................................... 16 Public Statute Laws of the State of Connecticut,
1808 tit. LXVI, ch. 1, § 2 (enacted Dec. 1, 1642; revised 1750) .............................. 29 Orders: Exec. Order No. 10450, 3 C.F.R. 936 (1953) ................................................................... 30 Regulations: 5 C.F.R. § 890.301(f) ............................................................................................................... 7 5 C.F.R. § 890.301(g) .............................................................................................................. 7 5 C.F.R. § 890.303 ................................................................................................................... 7 5 C.F.R. § 894.201(b) .............................................................................................................. 8 5 C.F.R. § 894.509(a) .............................................................................................................. 8 5 C.F.R. § 894.509(b) .............................................................................................................. 8 8 C.F.R. § 216.3 ..................................................................................................................... 59 26 C.F.R. § 1.106-1 ............................................................................................................... 19 38 C.F.R. § 39 ....................................................................................................................... 18 38 C.F.R. § 39.10(a) .............................................................................................................. 18 38 C.F.R. § 39.10(c) .............................................................................................................. 18 42 C.F.R. §§ 430.0 et seq ........................................................................................................ 15 18 Fed. Reg. 2489 (Apr. 29, 1953) ...................................................................................... 30 68 Fed. Reg. 56,525 (Oct. 1, 2003) ....................................................................................... 6
- xiii -

71 Fed. Reg. 66,827, 66,827 (Nov. 17, 2006) ...................................................................... 6
Rules:
Fed. R. App. P. 4(a)(1) .......................................................................................................... 1
Legislative Materials:
Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 (81st Congress), December 15, 1950 ....... 30
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ........................................ 46, 47, 48, 49, 50, 51, 52
H.R. Rep. 111-86 (2009) ...................................................................................................... 38
Other Authorities:
A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times (Nov. 3, 2010) ........................................................................................... 42
Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf ........................ 40
American Academy of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement (2009), available at http://www.aacap.org/cs/root/policy_statements/ gay_lesbian_transgender_and_bisexual_parents_policy_statement ....................... 50
American Academy of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents (Feb. 2002), available at http://aappolicy.aappublications.org/cgi/content/ full/pediatrics;109/2/339 .............................................................................................. 50
American Medical Association, AMA Policy Regarding Sexual Orientation, available at http://www.ama-assn.org/ama/pub/about-ama/our-people/ member-groupssections/glbt-advisory-committee/
- xiv -

ama-policy-regarding-sexual-orientation.shtml .......................................................... 51
American Psychological Association, Sexual Orientation, Parents, & Children (July 2004), available at http://www.apa.org/about/governance/council/policy/parenting.aspx ............. 50
Bob Barr, No Defending the Defense of Marriage Act, L.A. Times (Jan. 5, 2009), available at http://www.latimes.com/news/politics/newsletter/ la-oe-barr5-2009jan05,0,2810156.story?track=newslettertext .................................. 46
Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, available at http://www.cwla .org/programs/culture/glbtqposition.htm ................................. 51
Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law, 84 Chi. Kent L. Rev. 345 (2009) .................................................................... 37
Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221 (1994) ........................................................ 40
Edward L. Tulin, Note, Where Everything Old Is New Again—Enduring Episodic Discrimination Against Homosexual Persons, 84 Tex. L. Rev. 1587 (2006) .......................................................................................... 31
Florida State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and Citizenship in Florida (1964) .................................................. 36
G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf ............. 39
Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender? (April 2011), available at http://www3.law.ucla.edu/williamsinstitute/pdf/ How-many-people-are-LGBT-Final.pdf ..................................................................... 42
Gay rights referendum in Oregon, Washington Post (May 11, 1978 ) ................................... 37
General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (Mar. 1995) ........................................................................... 31, 32
- xv -

Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011) ................................. 4
Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431 (1992) ..................................................................................... 38
Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620 (1975) ................................................................................... 44
National Cemetery Administration Directive 3210/1 (June 4, 2008) ........................... 18
National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=16430 (last updated July 2011) ............ 42
Patricia Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551(1993) ............................................................................................. 30
Rebecca Mae Salokar, Note, Gay and Lesbian Parenting in Florida: Family Creation Around the Law, 4 Fla. Int’l. U. L. Rev. 473 (2009) ..................................................... 37
Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973) ............................................... 44
Richard A. Posner, Sex and Reason (1992) ...................................................................... 40
Robert Wintemute, Sexual Orientation and Human Rights (1995) .............................. 42
Settlement in gay bar raid, N.Y. Times (Mar. 23, 2011) ....................................................... 36
State of Tennessee, Public Chapter No. 278, available at http://state.tn.us/sos/acts/107/pub/pc0278.pdf .................................................... 37
Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 Colum. Hum. Rts. L. Rev. 159(1982) ................................................ 36
White House, Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010 (Dec. 22, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/22/ remarks-president-and-vice-president-signing-dont-ask-dont-tell-repeal-a ........... 45
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Why tide is turning against homosexuals, U.S. News & World Report (June 5, 1978) ....... 37 William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the
Closet, 1946-1961, 24 Fla. St. U. L. Rev. 703 (1997) ................................................... 35 Williams Institute, “Documenting Discrimination on the Basis of
Sexual Orientation and Gender Identity in State Employment” available at http://www.law.ucla.edu/williamsinstitute/programs/ EmploymentReports_ENDA .................................................................... 31, 32, 33, 38
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
________________________________
COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants-Appellants. __________________________________________
DEAN HARA, Plaintiff-Appellee/Cross-Appellant,
NANCY GILL, et al., Plaintiffs-Appellees, v.
OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants-Appellants/Cross-Appellees.
__________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
__________________________________________
SUPERSEDING BRIEF FOR THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.
__________________________________________
STATEMENT OF JURISDICTION
The district court had jurisdiction pursuant to 28 U.S.C. § 1331. Following the
district court’s entry of final judgment in each case, the United States filed timely notices
of appeal in both cases on October 12, 2010. Joint Appendix (“JA”) 677, 1426; see Fed.

R. App. P. 4(a)(1). This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES
1. Whether Section 3 of the Defense of Marriage Act is consistent with the equal protection component of the Fifth Amendment Due Process Clause.
2. Whether Section 3 of the Defense of Marriage Act exceeds federal authority under the Spending Clause.
3. Whether Section 3 of the Defense of Marriage Act violates state sovereignty under the Tenth Amendment.
STATUTES AND REGULATIONS The relevant statutory provisions are included in the addendum.
STATEMENT OF THE CASE This case involves the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) as applied to the plaintiffs in these two cases. Plaintiffs in Gill v. Office of Personnel Management are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts. Plaintiff in Massachusetts v. HHS is the Commonwealth of Massachusetts. The plaintiffs in Gill allege that they have been denied the benefits of certain federal statutes because of DOMA. They contend that this denial violates the equal protection component of the Due Process Clause. Massachusetts alleges that it may be required to repay or will be denied the benefit of certain federal funding programs
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because of DOMA and that it is negatively impacted as an employer by federal tax code provisions that are affected by DOMA. Massachusetts contends that these effects violate the Spending Clause, Art. I, § 8, cl. 1, by imposing an unconstitutionally discriminatory condition on its receipt of federal funds and by not being sufficiently germane to the spending programs at issue, and the Tenth Amendment, by intruding on core areas of state sovereignty.
The district court held DOMA unconstitutional on three grounds: that DOMA (1) violated the equal protection component of the Due Process Clause because it lacked a rational basis; (2) exceeded Congress’s authority under the Spending Clause because it was unconstitutional under the Due Process Clause; and (3) violated the Tenth Amendment because it imposed on an area of regulation historically left to the states. These appeals followed.
On January 20, 2011, federal defendants filed a consolidated opening brief as appellants in these cases, defending Section 3 of DOMA against plaintiffs’ equal protection challenges under the rational basis standard of review as well as defending against Massachusetts’s germaneness and Tenth Amendment challenges to the statute. On February 23, 2011, the President and Attorney General notified Congress of their determination that Section 3 of DOMA is unconstitutional as applied to legally married same-sex couples, and the Attorney General instructed Department of Justice attorneys “to advise courts in [] pending DOMA litigation of the President’s and my conclusions
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that a heightened standard should apply, [and] that Section 3 is unconstitutional under that standard[.]” Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011), at 6. Based on this decision, the President and the Attorney General determined that “the Department will cease defense of Section 3.” Id.
On May 20, 2011, the Bipartisan Legal Advisory Group of the United States House of Representatives (“BLAG”) moved to intervene in these cases. On June 2, 2011, the Department moved to withdraw its opening brief, and on July 16, 2011, this Court granted the BLAG’s intervention motion, denied the Department’s motion to withdraw its brief but allowed the Department to file a superseding brief, and set a briefing schedule for these cases. On August 23, 2011, this Court denied plaintiffs’ petition for initial rehearing en banc and reset the briefing schedule.
STATEMENT OF THE FACTS I. Statutory Background
The Defense of Marriage Act (“DOMA”) was enacted by Congress in 1996. DOMA has two main provisions. Section 2 of DOMA provides that no state is required to give effect to any public act, record, or judicial proceeding of another state that treats a relationship between two persons of the same sex as a marriage under its laws. 28 U.S.C. § 1738C. Section 3 of DOMA defines the terms “marriage” and “spouse” for purposes of federal law:
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
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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. Section 3 thereby excludes same-sex relationships from the definition of marriage or spouse for purposes of federal law, even if that relationship is fully recognized under state law. Only Section 3 is at issue in these two cases. II. Facts and Prior Proceedings A. Gill v . O ffic e o f Pe rs o n n e l Man ag e m e n t
1. Factual Background The plaintiffs in Gill are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses to whom they were married in Massachusetts. They contend that DOMA Section 3 violates the equal protection component of the Fifth Amendment Due Process Clause. The plaintiffs claim that, as a result of Section 3, they have been denied certain federal benefits that turn on marital status and that are available to married opposite-sex couples or survivors of opposite-sex spouses.1 Different Gill plaintiffs claim they are harmed by decisions relating to different federal programs. i. First, several plaintiffs seek benefits under three health benefits programs for federal employees and their family members and/or programs for workers’ retirement and survivors’ benefits. These three programs are the Federal Employees Health
1 Plaintiffs alternatively claimed before the district court that the Federal Employees Health Benefits Program statute confers on the Office of Personnel Management the discretion to extend health benefits to same-sex spouses. The district court denied this claim and plaintiffs have not appealed, so that issue is not before this Court.
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Benefits Program (“FEHBP”), the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), and the United States Postal Service’s flexible spending account program (“FSA”).2 The first two programs are administered by the Office of Personnel Management (“OPM”).
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks (1) to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self-and-family enrollment in the FEHBP; (2) to add Ms. Letourneau to FEDVIP; and (3) to use her flexible spending account for Ms. Letourneau’s medical expenses. JA 711 (Gill Compl. ¶ 6). Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHBP to a “self and family” enrollment to include his spouse, James Fitzgerald. Id. And plaintiff Dean Hara seeks enrollment in the FEHBP as the survivor of his spouse, former United States Representative Gerry Studds. Id.
a. The FEHBP is a comprehensive program of health insurance for federal civilian employees, annuitants, former spouses of employees and annuitants, and their family members. 5 U.S.C. § 8905. Premiums in the FEHBP are paid by both the government and the enrollees. Id. § 8906. Generally, an enrollee in the FEHBP chooses the carrier
2 The plaintiffs initially challenged the federal Flexible Spending Account program administered by the Office of Personnel Management (“OPM”), but that claim was later amended to refer to the Postal Service’s program. The OPM program does not apply to “[c]ertain executive branch agencies with independent compensation authority,” including the Postal Service, which had already “established their own flexible benefits plans.” 71 Fed. Reg. 66,827, 66,827 (Nov. 17, 2006); 68 Fed. Reg. 56,525 (Oct. 1, 2003).
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and plan in which to enroll, as well as whether to enroll for individual (“self only”) coverage or for “self and family” coverage. An enrollee can change this choice during federal “open season” or following a change in family status, “including a change in marital status.” Id. §§ 8905, 8906; 5 C.F.R. § 890.301(f), (g).
An “annuitant” eligible for coverage under FEHBP is, generally, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 5 U.S.C. § 8901(3)(B). When a federal employee or annuitant under “self and family” enrollment in FEHBP dies, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 5 C.F.R. § 890.303.
Thus, to be covered under FEHBP, anyone who is not a current federal employee or the family member of a current employee must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. A “member of family,” for the purposes of eligibility for coverage as an annuitant or for coverage under “self and family” enrollment, is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child . . . .” 5 U.S.C. § 8901(5). DOMA Section 3 prevents persons who, under state law, are same-sex spouses, or surviving same-sex spouses, of federal employees from receiving FEHBP coverage that they would be entitled to if they were or had been a member of an opposite-sex marriage with a federal employee.
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b. FEDVIP provides enhanced dental and/or vision coverage for federal civilian employees, annuitants, and their family members to supplement health insurance coverage under FEHBP. 5 U.S.C. §§ 8951, 8952, 8981, 8982. Persons enrolled in FEDVIP pay 100% of the premiums. Id. §§ 8958(a), 8988(a).
As with FEHBP, an enrollee in FEDVIP chooses the carrier and plan in which to enroll, as well as whether to enroll for “self only,” “self plus one,” or “self and family” coverage, and the enrollee can change this choice during federal “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” Id. §§ 8956(a), 8986(a); see 5 C.F.R. §§ 894.201(b), 894.509(a), (b). “Annuitant” and “member of family” have the same meanings in FEDVIP as they do in FEHBP. 5 U.S.C. §§ 8951(2), 8981(2). Thus, DOMA Section 3 prevents same-sex spouses or survivors of same-sex spouses under state law from receiving FEDVIP coverage they would be entitled to if they were or had been a member of an opposite-sex marriage with a federal employee.
c. The Postal Service’s FSA allows employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses for themselves and their family members, including spouses. The money withheld for flexible spending accounts is not subject to income taxes. 26 U.S.C. § 125. DOMA Section 3 prevents same-sex spouses or survivors of same-sex spouses from receiving the FSA tax benefits they would be able to receive if they were or had been a member of an opposite-sex marriage.
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ii. Second, some of the Gill plaintiffs seek benefits under the Social Security Act (“the Act”). The Act provides for, among other things, Retirement Benefits and Survivors’ Benefits for eligible persons. The Act is administered by the Social Security Administration, headed by the defendant Commissioner of Social Security. 42 U.S.C. §§ 901, 902.
A number of the plaintiffs in this action seek certain benefits under the Act, based on marriage to a same-sex spouse. Plaintiff Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. JA 712–13 (Gill Compl. ¶ 8). Three of the plaintiffs—Dean Hara, Randell Lewis-Kendell, and Herbert Burtis—seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. Id. Plaintiff Herbert Burtis also seeks Widower’s Insurance Benefits. Id.
a. The availability and amount of Social Security Retirement Benefits depend on an individual’s lifetime earnings in employment or self-employment. 42 U.S.C. §§ 402, 413(a), 414, 415. An individual can also seek retirement benefits based on the earnings of a husband or wife, called Husband’s or Wife’s Insurance Benefits, if the individual claiming the benefits “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [her husband or his wife].” Id. § 402(b), (c). DOMA Section 3 does not allow same-sex spouses to claim
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such Husband’s or Wife’s Insurance Benefits. b. The Act also provides some benefits to the surviving spouse of a wage earner.
First, the Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who has an adequate level of earnings from employment or self-employment. Id. §§ 402(i), 413(a), 414(a), (b). The amount of the benefit is $255 or an amount based on the individual’s earnings, whichever is smaller. Id. §§ 402(i), 415(a). Second, the Widower’s Insurance Benefit3 is available to the surviving husband of an individual who has an adequate level of earnings from employment or self-employment. Id. §§ 402(f), 413(a), 414(a), (b). The claimant, among other requirements, must not have “married” since the death of the individual (with some exceptions), must have attained the age set forth in the statute, and must be either “not entitled to old-age insurance benefits [on his own account], or . . . entitled to old-age insurance benefits each of which is less than the primary insurance amount . . . of such deceased individual . . . .” Id. § 402(f)(1); see id. § 402(f)(3). DOMA Section 3 does not allow survivors of same-sex spouses to claim the Lump-Sum Death Benefit or the Widower’s (or Widow’s) Insurance Benefit.
iii. Third, some of the Gill plaintiffs seek to file their federal income tax returns under a certain filing status. JA 711–12 (Gill Compl. ¶ 7). Under the Internal Revenue
3 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C.§ 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits in Gill is male (Herbert Burtis). Although not relevant to this litigation, that provision is similarly affected by DOMA.
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Code, the income tax imposed on an individual depends partly on the taxpayer’s “filing status.” A “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”). DOMA Section 3 prevents same-sex married couples from filing joint tax returns.
2. Prior Proceedings The Gill plaintiffs brought this suit in the district court, asking the district court to strike down DOMA as unconstitutional as applied to them or hold that it provided OPM with discretion to enroll them in the various plans at issue, and requesting various forms of equitable relief against the government. JA 709–825 (Gill Compl.). The government moved to dismiss the complaint, and the plaintiffs moved for summary judgment. JA 826, 828 (Gill Def. MTD; Gill Pl. MSJ). Given the absence of disputed facts, the district court resolved both motions together and, on July 8, 2010, granted summary judgment to all but one of the plaintiffs, Dean Hara. JA 1368 (Gill Op.). The district court first dismissed for lack of standing the FEHBP claim of plaintiff Hara (but not his other claims). JA 1382–83 (Gill Op. 15–16). Hara had previously sought to enroll in the FEHBP as a survivor annuitant based on his deceased spouse’s federal employment. Id. OPM found Hara ineligible for a survivor annuity both on
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initial review and on reconsideration, and the Merit Systems Review Board affirmed OPM’s denial. JA 1383 (Gill Op. 16). Hara appealed that decision to the Federal Circuit,4 which has stayed that case pending the outcome of this action. Id. The district court held that it could not redress Hara’s inability to enroll in the FEHBP as an annuitant because, unless and until he is declared eligible for a survivor annuity, he will remain ineligible for FEHBP enrollment regardless of the DOMA provision challenged in this suit. Id.
The district court also rejected the plaintiffs’ alternative argument that the FEHBP statute conferred discretion on OPM to extend health benefits to same-sex spouses, holding that the text of FEHBP is unambiguous on this issue.5 JA 1384–86 (Gill Op. 17–19).
The district court then held that DOMA Section 3 violates the equal protection component of the Fifth Amendment Due Process Clause. Because the district court found that Section 3 could not even satisfy rational basis scrutiny, the court did not need to reach plaintiffs’ claim that heightened scrutiny should apply. In reaching the conclusion that Section 3 fails rational basis, the district court first rejected four governmental interests it identified as purported support for DOMA, which the
4 See Hara v. OPM, No. 09-3134 (Fed. Cir.). 5 The plaintiffs have not appealed this issue, so it is not before this Court.
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government has not advanced in this litigation.6 The court then rejected other interests articulated by the government in this litigation, holding that neither preserving the status quo pending the resolution of a contentious societal debate on whether same-sex couples should enjoy equal access to the protections and benefits of marriage nor preserving the uniform application of federal programs across states is a legitimate interest supporting the statute. The court reasoned that “the subject of domestic relations is the exclusive province of the states,” and therefore that Congress has no interest in defining “marriage for purposes of determining federal rights, benefits, and privileges” because, in the district court’s view, the ability to define the terms “marriage” and “spouse” for the purposes of federal law is, constitutionally, the exclusive province of the states. JA 1395–98 (Gill Op. 28–31).
The court further held that, even if they represent valid congressional interests, the status quo and uniformity rationales are not sufficiently connected to DOMA Section 3 to support its constitutionality. With respect to the status quo rationale, the court found that the legal status quo prior to DOMA’s enactment was incorporation of state marriage law and that, regardless, simply preserving the status quo—without a reason for doing so—is not a rational basis for legislating. JA 1399–1400 (Gill Op. 32–33). With respect to the uniformity rationale, the court noted that DOMA does not impose
6 The district court described those interests as “(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.” JA 1390 (Gill Op. 23).
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uniformity on every aspect of state marriage law and that therefore uniformity cannot be a rationale for upholding the statute. JA 1400–01 (Gill Op. 33–34). Finally, the court held that, even if there were a legitimate interest in uniformity and a rational relationship between the statute and that interest, the fit would not be sufficiently close to survive scrutiny because the minor uniformity created by the statute is outweighed by the significant “disadvantage [to] a group of which [Congress] disapproves.” JA 1405 (Gill Op. 38).
On August 12, 2010, the district court entered final judgment for plaintiffs, enjoining application of DOMA Section 3 to the plaintiffs. JA 1407 (Gill Judgment). On August 17, 2010, following a joint motion for a stay, the district court entered an amended final judgment and a stay pending appeal. JA 1419–24 (Gill Amended Judgment). On October 12, 2010, the government timely appealed. JA 1426 (Gill Notice of Appeal). On October 13, 2010, plaintiff Hara timely cross-appealed the district court’s dismissal of his FEHB claim for lack of standing. JA 1428 (Gill Notice of Cross-Appeal).
B. Mas s ac h u s e tts v . HHS 1. Factual Background
Plaintiff, the Commonwealth of Massachusetts, contends that Section 3 of DOMA, as applied to various federal funding programs in which that state participates, violates two constitutional provisions: (1) the Spending Clause, by forcing the state to
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discriminate or lose federal funding and by not being sufficiently related to federal funding programs; and (2) the Tenth Amendment, by intruding in an area reserved exclusively to state authority. Specifically, the state alleges that it is at risk of losing some federal funding under Medicaid and for veterans’ cemeteries, and that it is required to pay extra Medicare taxes for health benefits that it provides to same-sex spouses of state employees.
In detail, the three federal programs at issue are as follows: i. Medicaid is a cooperative federal-state public assistance program that provides federal financial participation to states that elect to pay for medical services on behalf of certain needy individuals. 42 U.S.C. §§ 1396 et seq.; 42 C.F.R. §§ 430.0 et seq. Participation is voluntary, but once a state elects to participate, it must comply with the requirements of the Medicaid statute and regulations promulgated by the Secretary of Health and Human Services. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990). To qualify for federal financial participation, a participating state must submit to the Secretary, and have approved, a state “plan for medical assistance” that describes the nature and scope of the state program. 42 U.S.C. § 1396a(a). If the state plan is approved by the Secretary, the state is thereafter eligible to receive matching payments from the federal government of the amounts “expended . . . as medical assistance under the State plan.” 42 U.S.C. §§ 1396b(a)(1), 1396d(b). Congress has established a number of requirements that must be met for a state
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Medicaid plan to be approved and receive federal funds. 42 U.S.C. §§ 1396a(a)(1) et seq. Federal matching payments are not available to states with respect to individuals who do not meet the applicable Medicaid eligibility requirements, either by reason of their income levels or for other reasons, so if states make services available to these individuals, the services are not federally reimbursed. 42 U.S.C. §§ 1396b(a)(1), 1396d(b). An individual’s status as a “spouse,” as defined under federal law, may be relevant to that individual’s eligibility for Medicaid. For example, in determining income, a
[s]tate plan for medical assistance must . . . include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which . . . do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual’s spouse or such individual’s child who is under age 21 . . . . 42 U.S.C. § 1396a(a)(17). MassHealth is Massachusetts’s Medicaid program. JA 25 (Mass. Compl. ¶¶ 46–47). Under state law, “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under [MassHealth] . . . due to the provisions of 1 U.S.C. § 7 or any other federal non-recognition of spouses of the same sex.” Mass. Gen. Laws ch. 118E, § 61. For this reason, despite the effects of DOMA, Massachusetts considers individuals in same-sex marriages to be married for purposes of its Medicaid scheme. JA 27–28 (Mass. Compl. ¶¶ 56–59). The state’s statute has two different and opposing financial effects. In some
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circumstances, the recognition of marriages between same-sex couples can lead to the denial of health benefits for one or both partners because the incomes of both spouses are combined to determine household income for purposes of Medicaid eligibility. JA 28–29 (Mass. Compl. ¶ 61). Because federal law does not recognize marriages of samesex couples, Massachusetts saves money by not following DOMA in these instances. In other circumstances, however, the recognition of a same-sex couple’s marriage can render one or both partners eligible for benefits they would not otherwise receive. That occurs because the income ceiling for Medicaid eligibility is higher for a married couple than for a single individual.
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single individuals pursuant to DOMA. JA 28–29 (Mass. Compl. ¶ 61). Correspondingly, MassHealth provides coverage to partners in same-sex marriages who would not be eligible if treated as single individuals, as required by DOMA. JA 28 (Mass. Compl. ¶ 59). Massachusetts claims that it has not sought federal matching payments with respect to these individuals because it fears federal enforcement of DOMA and the loss of federal funds if the Department of Health and Human Services (“HHS”) determines that MassHealth is not in compliance with federal law. JA 28–29 (Mass. Compl. ¶¶ 59–62).
ii. Under the State Cemetery Grants Program, the Department of Veterans Affairs (“VA”) provides federal funding for the establishment, expansion, and improvement, or
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operation and maintenance, of veterans’ cemeteries owned and operated by a state. 38 U.S.C. § 2408; 38 C.F.R. § 39. Massachusetts has received three grants totaling over $19 million for its two cemeteries. JA 31 (Mass. Compl. ¶ 71).
Federal funding for veterans’ cemeteries is conditioned on compliance with VA regulations, 38 U.S.C. § 2408(c), which include the condition that cemeteries “must be operated solely for the interment of veterans, their spouses, [and] surviving spouses[.]” 38 C.F.R. § 39.10(a). Because, under DOMA Section 3, same-sex spouses are not considered “spouses,” VA would be “entitled,” but not required, to recover any grant funds paid to a state for a veterans’ cemetery under the State Cemetery Grants Program if the state “ceases to operate such cemetery as a veterans’ cemetery” by burying the same-sex spouse of a veteran at such cemetery. See 38 U.S.C. § 2408(b)(3); see also 38 C.F.R. § 39.10(c). The National Cemetery Administration, which is part of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” National Cemetery Administration Directive 3210/1 (June 4, 2008).7 Nonetheless, the Commonwealth authorized the burial of the same-sex spouse of a veteran. JA 32 (Mass. Compl. ¶ 77). The spouse, who is still living, is not otherwise eligible for burial in a veterans’ cemetery. Mass. Compl. ¶ 77. Massachusetts alleges that,
7 Available at http://www.dva.wa.gov/PDF%20files/3210-1_Directive.pdf. - 18 -

if either of its two cemeteries ceases to be operated as a veterans’ cemetery, VA can recapture from the state any funds provided for its construction, expansion, or improvement. JA 32 (Mass. Compl. ¶ 79).
iii. Under federal law, health care benefits provided by an employer to an employee’s spouse are generally excluded from that employee’s taxable income. 26 U.S.C. § 106; 26 C.F.R. § 1.106-1. Because, under DOMA Section 3, same-sex spouses are not considered “spouses,” health care benefits provided to them by an employer are not excluded from an employee’s taxable income and must be imputed as extra income to the employee for federal tax withholding purposes.
As an employer, Massachusetts is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income. 26 U.S.C. §§ 3121(u), 3111(b). Massachusetts provides health care benefits to the samesex spouses of its employees, and, because these benefits are not exempted from taxes, the state must pay this Medicare tax for the value of the health benefits provided to the same-sex spouses that it does not need to pay for the value of health benefits provided to the opposite-sex spouses of its employees. JA 24–25 (Mass. Compl. ¶ 42–44). The state has also had to create and implement systems to identify insurance enrollees who provide health care coverage to their same-sex spouses, as well as to calculate the value of such coverage, so the state can keep track of this tax. JA 24–25 (Mass. Compl. ¶ 44).
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2. Prior Proceedings Massachusetts brought this suit in the district court, asking the court to strike down DOMA as unconstitutional as applied to Massachusetts. JA 12–37 (Mass. Compl.). The federal government moved to dismiss, and Massachusetts moved for summary judgment. JA 59, 62. Given the absence of disputed facts, the district court resolved both motions together and, on July 8, 2010, granted summary judgment to Massachusetts. JA 634–69 (Mass. Op.). The district court held that DOMA exceeds federal authority under the Spending Clause and violates the Tenth Amendment.8 The district court first held that “DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples,” which the district court had held in Gill violated the equal protection component of the Due Process Clause. JA 660 (Mass. Op. 27). As a result, the court held that, “as DOMA imposes an unconstitutional condition on the receipt of federal funding, . . . the statute contravenes a well-established restriction on the exercise of Congress’ spending power.” Id. The district court did not reach Massachusetts’s
8 The district court also rejected the government’s argument that Massachusetts lacked standing because the government had never acted to recoup funds from Massachusetts under the State Cemetery Grants Program or Medicaid. The district court found the record “replete” with evidence that VA and HHS had asserted a right to recapture these funds, and that, as to Medicaid, the state had already given up significant federal funding to follow its state marriage law. JA 652–54 (Mass. Op. 19–21). The government is not appealing this ruling.
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assertion that DOMA also violates the Spending Clause because it is not sufficiently related to federal funding programs. JA 660–61 (Mass. Op. 27–28).
The district court then alternatively held that DOMA violates the Tenth Amendment because it (1) “regulate[s] the States as States”; (2) “concern[s] attributes of state sovereignty”; and (3) is of “such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions,” JA 661 (Mass. Op. 28), applying the test from National League of Cities v. Usery, 426 U.S. 833 (1976). In so holding, the district court observed that there was a “historically entrenched tradition of federal reliance on state marital status determinations.” JA 662–65 (Mass. Op. 29–32).
On August 12, 2010, the district court entered final judgment for Massachusetts, enjoining application of DOMA to Massachusetts. JA 670 (Mass. Judgment). On August 24, 2010, following a joint motion for a stay, the district court entered a stay pending appeal. JA 676 (Mass. Stay Order). On October 12, 2010, the government timely appealed. JA 677 (Mass. Notice of Appeal).
SUMMARY OF ARGUMENT Section 3 of DOMA unconstitutionally discriminates. Section 3 treats same-sex couples who are legally married under their states’ laws differently than similarly situated opposite-sex couples, denying them the status, recognition, and significant federal benefits otherwise available to married persons. Under the well-established factors set
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forth by the Supreme Court to guide the determination whether heightened scrutiny applies to a classification that singles out a particular group, discrimination based on sexual orientation merits heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.
The Supreme Court has yet to determine the appropriate level of scrutiny for classifications based on sexual orientation, but it has established a set of factors to guide whether heightened scrutiny applies to a specific group: (1) whether the group in question has suffered a history of discrimination; (2) whether members of the group “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439–41 (1985). Careful consideration of these factors demonstrates that sexual orientation classifications should be subject to heightened scrutiny.
The Department has acknowledged in its superseded opening brief on file with this Court, as well as in its response to the petition for initial hearing en banc, that binding authority of this circuit holds that rational basis review applies to classifications based on sexual orientation, see Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008). We respectfully submit that Cook does not withstand scrutiny, as we explain infra. The Cook
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decision fails to account for the factors identified by the Supreme Court as relevant to the inquiry, and the Supreme Court has yet to rule on the appropriate level of scrutiny. While recognizing existing circuit precedent, the Department submits this superseding brief to provide a full explanation of its view of how these consolidated cases should ultimately be decided.
Accordingly, heightened scrutiny should be applied to Section 3 of DOMA, and the statute is unconstitutional under that level of review. Congress’s announced rationales in enacting Section 3 fall short of meeting heightened scrutiny, and the legislative record contains numerous expressions of the type of stereotype-based thinking and animus that the Constitution’s equal protection guarantee is designed to guard against.
In sum, this Court’s precedent applying rational basis review to classifications based on sexual orientation should be reconsidered, and the district court’s judgments should be affirmed on the ground that Section 3 of DOMA is subject to heightened scrutiny and, under that standard, is unconstitutional as applied to same-sex couples married under state law. If this Court concludes that Section 3 violates equal protection, it must also conclude that Section 3 is not authorized by the Spending Clause. In that event, this Court need not reach the other issues presented by these cases.
However, if this Court holds that Section 3 does not violate equal protection, it should reverse the district court’s ruling on the Tenth Amendment challenge presented
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by Massachusetts. The Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power,” United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997). In the event that this Court holds that Section 3 does not violate equal protection and therefore represents a valid exercise of Congress’s Spending Clause authority, it plainly does not violate the Tenth Amendment.
STANDARD OF REVIEW This Court reviews de novo challenges to the constitutionality of a federal statute. United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010).
ARGUMENT I. DOMA Violates Equal Protection.
The Constitution’s guarantee of equal protection of the laws, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954); Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008), embodies a fundamental requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). DOMA Section 3 is inconsistent with that principle of equality, as it denies legally married samesex couples federal benefits that are available to similarly situated opposite-sex couples.
For the reasons set forth below, heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual
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orientation. Under that more rigorous standard, Section 3 of DOMA cannot pass constitutional muster.
A. Plaintiffs’ Equal Protection Challenge to DOMA Is Subject to Heightened Scrutiny under Supreme Court Precedent.
As a general rule, legislation challenged under equal protection principles is presumed valid and sustained as long as the “classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440. “[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the [government] has the authority to implement,” courts will not “closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued.” Id. at 441–42. Where, however, legislation classifies on the basis of a factor that “generally provides no sensible ground for differential treatment,” such as race or gender, the law demands more searching review and imposes a greater burden on the government to justify the classification. Id. at 440–41.
Such suspect or quasi-suspect classifications are reviewed under a standard of heightened scrutiny, under which the government must show, at a minimum, that a law is “substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). This more searching review enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and serves to prevent implementation of classifications that are the product of impermissible prejudice or stereotypes. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)
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(plurality opinion); United States v. Virginia (“VMI”), 518 U.S. 515, 533 (1996).
The Supreme Court has yet to rule on the appropriate level of scrutiny for
classifications based on sexual orientation.9 It has, however, established and repeatedly
confirmed a set of factors that guide the determination of whether heightened scrutiny
applies to a classification that singles out a particular group. These include: (1) whether
the group in question has suffered a history of discrimination; (2) whether members of
the group “exhibit obvious, immutable, or distinguishing characteristics that define them
as a discrete group”; (3) whether the group is a minority or is politically powerless; and
(4) whether the characteristics distinguishing the group have little relation to legitimate
policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen
9 In neither Romer v. Evans, 517 U.S. 620 (1996), nor Lawrence v. Texas, 539 U.S. 558 (2003), did the Supreme Court opine on the applicability of heightened scrutiny to sexual orientation. In both cases, the Court invalidated sexual orientation classifications under a more permissive standard of review without having to decide whether heightened scrutiny applied (Romer found that the legislation failed rational basis review, 517 U.S. at 634–35; Lawrence found the law invalid under the Due Process Clause, 539 U.S. at 574–75).
Nor did the Court decide the question in its one line per curiam order in Baker v. Nelson, 409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying marriage status to a same-sex couple, id. at 810. Baker did not concern the constitutionality of a federal law, like DOMA Section 3, that distinguishes among couples who are already legally married in their own states, and was motivated by animus toward gay and lesbian people. See infra Part I.B. Moreover, neither the Minnesota Supreme Court decision, Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), nor the questions presented in the plaintiffs’ jurisdictional statement raised whether classifications based on sexual orientation are subject to heightened scrutiny, see Baker v. Nelson, Jurisdictional Statement, No. 71-1027 (Sup. Ct.), at 2; see also id. at 13 (repeatedly describing equal protection challenge as based on the “arbitrary” nature of the state law). There is no indication in the Court’s order that the Court nevertheless considered, much less resolved, that question.
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v. Gilliard, 483 U.S. 587, 602–03 (1987); see also Cleburne, 473 U.S. at 441–42. Although there is substantial circuit court authority, including binding authority
of this circuit, holding that rational basis review generally applies to sexual orientation classifications, see, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008), most of these decisions fail to give adequate consideration to these factors. Indeed, the reasoning of this line of case law traces back to circuit court decisions from the late 1980s and early 1990s, a time when Bowers v. Hardwick, 478 U.S. 186 (1986), was still the law. The Supreme Court subsequently overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003), and the reasoning of these circuit decisions no longer withstands scrutiny.
In Cook, for example, this Court considered an equal protection challenge to 10 U.S.C. § 654, which established the policy concerning homosexuality in the armed forces. 528 F.3d at 45. Plaintiffs contended that, because it classified on the basis of sexual orientation, § 654 should be subject to heightened scrutiny under equal protection principles. Id. at 60. Without invoking the deference due to military judgments, cf. Rostker v. Goldberg, 453 U.S. 57, 70 (1981), this Court concluded that, in the context of equal protection challenges, classifications based on sexual orientation are only subject to rational basis review.10 In so holding, this Court concluded that, because “Romer
10 Cook and a number of cases in other circuits involved challenges to military policy on homosexual conduct. See Cook, 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir. 1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 565 (9th Cir. 1990); Woodard v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454, 456 (7th Cir. 1989). Classifications
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nowhere suggested that the Court recognized a new suspect class,” it would apply
rational basis “[a]bsent additional guidance from the Supreme Court.” Id. at 61. As
noted above, Romer did not address the question of what standard of scrutiny applies to
sexual orientation classifications. It therefore cannot serve as a basis for the decision not
to apply heightened scrutiny to classifications based on sexual orientation.11 Careful
consideration of the factors the Supreme Court has identified as relevant to the inquiry
demonstrates that classifications based on sexual orientation should be subject to
heightened scrutiny.
1. Gays and Lesbians Are a Suspect or QuasiSuspect Class under the Relevant Factors Identified by the Supreme Court.
i. Gays and Lesbians Have Been Subject to a History of Discrimination.
in the military context, however, present different questions from classifications in the civilian context, see, e.g., Rostker, 453 U.S. at 70, and the military is not involved here.
11 As noted above, other courts of appeals have held that classifications on the basis of sexual orientation are not subject to heightened scrutiny, but the reasoning of these courts is similarly flawed. One of those courts relied, like this Court in Cook, on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect or quasi-suspect class. Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004). Many other courts relied in part or in whole on Bowers. See Equality Found. v. City of Cincinnati, 54 F.3d 261, 266–67 & n.2 (6th Cir. 1995); Steffan, 41 F.3d at 685 n.3; High Tech Gays, 895 F.2d at 571; Woodward, 871 F.2d at 1076; Ben-Shalom, 881 F.2d at 464; see also Richenberg, 97 F.3d at 260 (citing to reasoning of prior appellate decisions that were based on Bowers); Thomasson, 80 F.3d at 928 (same). Finally, the remaining courts to address the issue offered no pertinent reasoning in so doing. Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Nat’l Gay Task Force v. Bd. of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984).
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First, courts have recognized that gay and lesbian individuals have suffered a long and significant history of purposeful discrimination. See High Tech Gays, 895 F.2d at 574 (“[W]e do agree that homosexuals have suffered a history of discrimination . . . .”); see also Ben-Shalom v. Marsh, 881 F.2d 454, 465–66 (7th Cir. 1989) (noting that “[h]omosexuals have suffered a history of discrimination and still do, though possibly now in less degree”). So far as we are aware, no court to consider this question has ever ruled otherwise.
Discrimination against gay and lesbian individuals has a long history in this country, Bowers, 478 U.S. at 192, from colonial laws ordering the death of “any man [that] shall lie with mankind, as he lieth with womankind,” see, e.g., Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, § 2, 294–95 & n.1 (enacted Dec. 1, 1642; revised 1750), to state laws that, until very recently, have “demean[ed] the[] existence” of gay and lesbian people “by making their private sexual conduct a crime,” Lawrence, 539 U.S. at 578. In addition to the discrimination reflected in DOMA itself, as explained below, the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.12
12 We do not understand the Supreme Court to have called into question this well-documented history when it said in Lawrence that “it was not until the 1970’s that any State singled out same-sex relations for criminal prosecution,” 539 U.S. at 570, and that only nine States had done so by the time of Lawrence. The question before the Court in Lawrence was whether, as Bowers had asserted, same-sex sodomy prohibitions were so deeply rooted in history that they could not be understood to contravene the Due Process Clause. That the Court rejected that argument and invalidated Texas’s sodomy
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a. Discrimination by the Federal Government The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals. For years, the federal government deemed gays and lesbians unfit for employment, barring them from federal jobs on the basis of their sexual orientation. See Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 (81st Congress), December 15, 1950, (“Interim Report”), at 9. In 1950, Senate Resolution 280 directed a Senate subcommittee “to make an investigation in the employment by the Government of homosexuals and other sexual perverts.” Patricia Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551 , 1565–66 (1993). The Committee found that from 1947 to 1950, “approximately 1,700 applicants for federal positions were denied employment because they had a record of homosexuality or other sex perversion.” Interim Report at 9. In April 1953, in the wake of the Senate investigation, President Eisenhower issued Executive Order 10450, which officially added “sexual perversion” as a ground for investigation and possible dismissal from federal service. Exec. Order No. 10450, 3 C.F.R. 936, 938 (1953); see also 18 Fed. Reg. 2489 (Apr. 29, 1953). The Order expanded the investigations of civilian employees for “sexual perversion” to include every agency
law on due process grounds casts no doubt on the duration and scope of discrimination against gay and lesbian people writ large.
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and department of the federal government, and thus had the effect of requiring the termination of all gay people from federal employment. See General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process, at 2 (Mar. 1995).
The federal government enforced Executive Order 10450 zealously, engaging various agencies in intrusive investigatory techniques to purge gays and lesbians from the federal civilian workforce. The State Department, for example, charged “skilled investigators” with “interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms,” used polygraphs on individuals accused of homosexuality who denied it, and sent inspectors “to every embassy, consulate, and mission” to uncover homosexuality. Edward L. Tulin, Note, Where Everything Old Is New Again—Enduring Episodic Discrimination Against Homosexual Persons, 84 Tex. L. Rev. 1587, 1602 (2006). In order to identify gays and lesbians in the civil service, the FBI “sought out state and local police officers to supply arrest records on morals charges, regardless of whether there were convictions; data on gay bars; lists of other places frequented by homosexuals; and press articles on the largely subterranean gay world.” Williams Institute, “Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment,” ch. 5 at 7, available at http://www.law.ucla.edu/williamsinstitute/programs/EmploymentReports_ENDA. html (“Williams Report”). In the 1950s and early 1960s, the Post Office Department (the predecessor to the Postal Service), for its part, aided the FBI by “establish[ing] a
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watch on the recipients of physique magazines, [those who] subscribed to pen pal clubs, and [those who] initiated correspondence with men whom they believed might be homosexual.” Id. If “their suspicions were confirmed, they then placed tracers on victims’ mail in order to locate other homosexuals.” Id.
The end result was thousands of men and women forced from their federal jobs based on the suspicion that they were gay or lesbian. It was not until 1975 that the Civil Service Commission prohibited discrimination on the basis of sexual orientation in federal civilian hiring. See General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (1995) (describing the federal government’s restrictions on the employment of gay and lesbian individuals).13
The history of the federal government’s discrimination against gays and lesbians extends beyond the employment context. For decades, gay and lesbian noncitizens were categorically barred from entering the United States, on grounds that they were “persons of constitutional psychopathic inferiority,” “mentally defective,” or sexually deviant. Lesbian/Gay Freedom Day Comm., Inc. v. INS, 541 F. Supp. 569, 571–72 (N.D. Cal. 1982) (quoting Ch. 29, § 3, 39 Stat. 874 (1917)), aff’d Hill v. INS, 714 F.2d 1470 (9th Cir. 1983). As the Supreme Court held in Boutilier v. INS, 387 U.S. 118 (1967), “[t]he legislative
13 Open military service by gays and lesbians was prohibited, first by regulation and then by statute, 10 U.S.C. § 654 (2007), until the “Don’t Ask, Don’t Tell” Repeal Act, enacted last year, 111 P.L. 321, 124 Stat. 3515 (2010). Pursuant to the Repeal Act, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certified the repeal on July 22, 2011, and repeal was effective 60 days from that date, on September 20, 2011.
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history of [the Immigration and Nationality Act of 1952] indicates beyond a shadow of a doubt that the Congress intended the phrase ‘psychopathic personality’ to include homosexuals.” Id. at 120. This exclusion remained in effect until Congress repealed it in 1990. See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978.
b. Discrimination by State and Local Governments Like the federal government, state and local governments have long discriminated against gays and lesbians in public employment. By the 1950s, many state and local governments had banned gay and lesbian employees, as well as gay and lesbian “employees of state funded schools and colleges, and private individuals in professions requiring state licenses.” Williams Report, ch. 5 at 18. Many states and localities began aggressive campaigns to purge gay and lesbian employees from government services as early as the 1940s. Id. at 18–34. This employment discrimination was interrelated with longstanding state law prohibitions on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians had engaged in criminalized and immoral sexual conduct. See, e.g., Childers v. Dallas Police Dep’t, 513 F. Supp. 134, 138, 147–48 (N.D. Tex. 1981) (holding that police could refuse to hire gays), aff’d without opinion, 669 F.2d 732 (5th Cir. 1982); Gaylord v. Tacoma Sch. Dist. No. 10, 559 P.2d 1340, 1342, 1347 (Wash. 1977) (upholding the dismissal of an openly gay school teacher who was fired based on a local school board policy that allowed removal for “immorality”); Burton v. Cascade Sch. Dist. Union
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High Sch., No.5, 512 F.2d 850, 851 (9th Cir. 1975) (upholding the dismissal of a lesbian teacher in Oregon, after adopting a resolution stating that she was being terminated “because of her immorality of being a practicing homosexual”); Bd. of Educ. v. Calderon, 110 Cal. Rptr. 916, 919 (1973) (holding that state sodomy statute was a valid ground for discrimination against gays as teachers); see also Baker v. Wade, 553 F. Supp. 1121, 1128 n.9 (N.D. Tex. 1982) (“A school board member testified that [the defendant] would have been fired [from his teaching position] if there had even been a suspicion that he had violated [the Texas sodomy statute].”), rev’d, 769 F.2d 289 (5th Cir. 1985) (holding that challenged Texas homosexual sodomy law was constitutional). Some of these discriminatory employment policies continued into the 1990s. See Shahar v. Bowers, 114 F.3d 1097, 1105 & n.17, 1107–10 (11th Cir. 1997) (en banc) (upholding Georgia Attorney General’s Office’s rescission of a job offer to plaintiff after she mentioned to co-workers her upcoming wedding to her same-sex partner); City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) (holding unconstitutional Dallas Police Department policy denying gays and lesbians employment).
Based on similar assumptions regarding the criminal sexual conduct of gays and lesbians, states and localities also denied child custody and visitation rights to gay and lesbian parents. See, e.g., Ex parte H.H., 830 So. 2d 21, 26 (Ala. 2002) (Moore, C.J., concurring) (concurring in denial of custody to lesbian mother on ground that “[h]omosexual conduct is . . . abhorrent, immoral, detestable, a crime against nature, and
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a violation of the laws of nature and of nature’s God . . . [and] an inherent evil against which children must be protected.”); Pulliam v. Smith, 501 S.E.2d 898, 903–04 (N.C. 1998) (upholding denial of custody to a gay man who had a same-sex partner; emphasizing that father engaged in sexual acts while unmarried and refused to “counsel the children against such conduct”); Bowen v. Bowen, 688 So. 2d 1374, 1381 (Miss. 1997) (holding that a trial court did not err in granting a father custody of his son on the basis that people in town had rumored that the son’s mother was involved in a lesbian relationship); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (noting that, although the Court had previously held “that a lesbian mother is not per se an unfit parent,” the “[c]onduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth” and therefore “that conduct is another important consideration in determining custody”); Roe v. Roe, 324 S.E.2d 691, 692, 694 (Va. 1985) (holding that father, who was in a same-sex relationship, was “an unfit and improper custodian as a matter of law” because of his “continuous exposure of the child to his immoral and illicit relationship”).
State and local law also has been used to prevent gay and lesbian people from associating freely. Liquor licensing laws, both on their face and through discriminatory enforcement, were long used to harass and shut down establishments patronized by gays and lesbians. See William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961, 24 Fla. St. U. L. Rev. 703, 762–66 (1997) (describing such efforts in New
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York, New Jersey, Michigan, California, and Florida); see also Irvis v. Scott, 318 F. Supp. 1246, 1249 (M.D. Pa. 1970) (describing such efforts in Pennsylvania). State and local police also relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and lesbian people congregated in public. See, e.g., Pryor v. Mun. Court, 599 P.2d 636, 644 (Cal. 1979) (“Three studies of law enforcement in Los Angeles County indicate[d] that the overwhelming majority of arrests for violation of [the ‘lewd or dissolute’ conduct statute] involved male homosexuals.”); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960–1980, 12 Colum. Hum. Rts. L. Rev. 159, 162–64 (1982); Florida State Legislative Investigation Committee (Johns Committee), Report: Homosexuality and Citizenship in Florida, at 14 (1964) (“Many homosexuals are picked up and prosecuted on vagrancy or similar non-specific charges, fined a moderate amount, and then released.”). Similar practices persist to this day. See, e.g., Calhoun v. Pennington, No. 09-3286 (N.D. Ga.) (involving September 2009 raid on Atlanta gay bar and police harassment of patrons); Settlement in gay bar raid, N.Y. Times (Mar. 23, 2011) (involving injuries sustained by gay bar patron during raid by Fort Worth police officers and the Texas Alcoholic Beverage Commission).
Efforts to combat discrimination against gays and lesbians also have led to significant political backlash, as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination. See also infra Part I.A.1.iii. A rash of such initiatives succeeded in the late 1970s. See, e.g.,
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Christopher R. Leslie, The Evolution of Academic Discourse on Sexual Orientation and the Law, 84 Chi. Kent L. Rev. 345, 359 (2009) (Boulder, Colorado in 1974); Rebecca Mae Salokar, Note, Gay and Lesbian Parenting in Florida: Family Creation Around the Law, 4 Fla. Int’l. U. L. Rev. 473, 477 (2009) (Dade County, Florida in 1977); St. Paul Citizens for Human Rights v. City Council of the City of St. Paul, 289 N.W.2d 402, 404 (Minn. 1979) (St. Paul, Minnesota in 1978); Gay rights referendum in Oregon, Washington Post (May 11, 1978), at A14 (Wichita, Kansas in 1978); Why tide is turning against homosexuals, U.S. News & World Report (June 5, 1978), at 29 (Eugene, Oregon in 1978). The laws at issue in Romer and in Equality Foundation v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) are just two of a number of more recent examples from the 1990s. In fact, in May 2011, the Tennessee legislature enacted a law stripping counties and municipalities of their ability to pass local non-discrimination ordinances that would prohibit discrimination on the basis of sexual orientation, and repealing the ordinances that had recently been passed by Nashville and other localities.14 Similar responses have followed states’ decisions to recognize same-sex marriages. See infra Part I.A.1.iii.
c. Discrimination by Private Parties Finally, private discrimination against gays and lesbians in employment and other
14 See State of Tennessee, Public Chapter No. 278, available at http://state.tn.us/sos/acts/107/pub/pc0278.pdf.
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areas has been pervasive and continues to this day.15 See, e.g., Williams Report, ch. 5 at 8–9 (explaining that private companies and organizations independently adopted discriminatory employment policies modeled after the federal government’s, and as federal employers shared police and military records on gay and lesbian individuals with private employers, these same persons who were barred from federal employment on the basis of their sexual orientation were simultaneously blacklisted from employment by many private companies). The pervasiveness of private animus against gays and lesbians is underscored by statistics showing that gays and lesbians continue to be among the most frequent victims of all reported hate crimes. See H.R. Rep. 111-86, at 9–10 (2009) (“According to 2007 FBI statistics, hate crimes based on the victim’s sexual orientation—gay, lesbian, or bisexual—constituted the third highest category reported—1,265 incidents, or one-sixth of all reported hate crimes.”); Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431, 1464 (1992).
In sum, gays and lesbians have suffered a long history of discrimination based on prejudice and stereotypes. That history counsels strongly in favor of heightened scrutiny, giving courts ample reason to question whether sexual orientation classifications are the product of hostility rather than a legitimate government purpose.
15 Private discrimination, as well as official discrimination, is relevant to whether a group has suffered a history of discrimination for purposes of the heightened scrutiny inquiry. Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) (“[W]omen still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena.”).
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ii. Gays and Lesbians Exhibit Immutable Characteristics that Distinguish Them as a Group.
Over ten years ago, in considering whether gays and lesbians constituted a “particular social group” for asylum purposes, the Ninth Circuit recognized that “[s]exual orientation and sexual identity are immutable,” and that “[h]omosexuality is as deeply ingrained as heterosexuality.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (quotation omitted). But see High Tech Gays, 895 F.2d at 573 (stating that sexual orientation is not immutable because “it is behavioral”). Sexual orientation, the Ninth Circuit explained, is “fundamental to one’s identity,” and gay and lesbian individuals “should not be required to abandon” it to gain access to fundamental rights guaranteed to all people. Hernandez-Montiel, 225 F.3d at 1093.
That conclusion is consistent with the overwhelming consensus in the scientific community that sexual orientation is an immutable characteristic. See e.g., G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults, 7, 176–200 (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf (noting that in a national survey conducted with a representative sample of more than 650 self-identified lesbian, gay, and bisexual adults, 95 percent of the gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “small amount of choice” about their sexual orientation). There is also a consensus among the established
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medical community that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being.16 See Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (“[E]fforts to change sexual orientation are unlikely to be successful and involve some risk of harm.”); see also Richard A. Posner, Sex and Reason 101 n.35 (1992) (describing “failure of treatment strategies . . . to alter homosexual orientation”); Douglas Haldeman, The Practice and Ethics of Sexual Orientation Conversion Therapy, 62 J. Consulting & Clinical Psychol. 221, 226 (1994) (describing “lack of empirical support for conversion therapy”).
Furthermore, sexual orientation need not be a “visible badge” that distinguishes gays and lesbians as a discrete group for the classification to warrant heightened scrutiny. As the Supreme Court has made clear, a classification may be “constitutionally suspect” even if it rests on a characteristic that is not readily visible, such as illegitimacy. Mathews v. Lucas, 427 U.S. 495, 504 (1976); see id. at 506 (noting that “illegitimacy does not carry an obvious badge, as race or sex do,” but nonetheless applying heightened scrutiny). Whether or not gays and lesbians could hide their identities in order to avoid
16 In fact, every major mental health organization has adopted a policy statement cautioning against the use of so-called “conversion” or “reparative” therapies to change the sexual orientation of gays and lesbians. These policy statements are reproduced in a 2008 publication of the American Psychological Association, available at http://www.apa.org/pi/lgbt/resources/just-the-facts.pdf.
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discrimination, they are not required to do so. As the Court has recognized, sexual
orientation is a core aspect of identity, and its expression is an “integral part of human
freedom,” Lawrence, 539 U.S. at 562, 576–77.
iii. Gays and Lesbians Are Minorities with Limited Political Power.
Third, gays and lesbians are a minority group,17 Able v. United States, 968 F. Supp.
850, 863 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998), that has historically lacked
political power. To be sure, many of the forms of historical discrimination described
above have subsided or been repealed. But efforts to combat discrimination have
frequently led to successful initiatives to scale back protections afforded to gay and
lesbian individuals. See also supra Part I.A.1.i.b. As described above, the adoption of
ballot initiatives specifically repealing laws protecting gays and lesbians from
discrimination (including the laws at issue in Romer and Equality Foundation v. City of
Cincinnati) are examples of such responses. In fact, “[f]rom 1974 to 1993, at least 21
referendums were held on the sole question of whether an existing law or executive
17 It is difficult to offer a definitive estimate for the size of the gay and lesbian community in the United States. According to an analysis of various data sources published in April 2011 by the Williams Institute, there appear to be 9 million adults in the United States who are lesbian, gay or bisexual, comprising 3.5 percent of the adult population. See Gary J. Gates, How Many People Are Lesbian, Gay, Bisexual, and Transgender?(April 2011), available at http://www3.law.ucla.edu/williamsinstitute/pdf/ How-many-people-are-LGBT-Final.pdf. Ascertaining the precise percentage of gays and lesbians in the population, however, is not relevant to the analysis, as it is clear that whatever the data reveal, there is no dispute that gays and lesbians constitute a minority in the country.
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order prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21 cases, a majority voted to repeal the law or executive order.” Robert Wintemute, Sexual Orientation and Human Rights 56 (1995).
The strong backlash in the 1970s, 1980s, and 1990s to these civil rights ordinances has been followed in the 2000s with similar political backlashes against same-sex marriage. In 1996, at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex couples. National Conference of State Legislatures, Same-Sex Marriage, Civil Unions and Domestic Partnerships, available at http://www.ncsl.org/default.aspx?tabid=16430 (last updated July 2011). Today, thirtyseven states have such statutes, and thirty states have constitutional amendments explicitly restricting marriage to opposite-sex couples. Id.
California and Iowa are recent examples of such backlash. In May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage. In re Marriage Cases, 183 P.3d 384, 419–20 (Cal. 2008). In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples. See Strauss v. Horton, 207 P.3d 48, 120 (Cal. 2009). In November 2010, when three Iowa state supreme court justices who had been part of a unanimous decision legalizing same-sex marriage were up for reelection, Iowa voters recalled all of them. See A.G. Sulzberger, Ouster of Iowa Judges Sends Signal to Bench, N.Y. Times (Nov. 3, 2010).
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Beyond these state ballot initiatives, the relatively recent passages of anti-sodomy
laws singling out same-sex conduct, such as the Texas law the Supreme Court ultimately
invalidated in Lawrence, indicate that gays and lesbians lack the consistent “ability to
attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445.
This is not to say that the political process is closed entirely to gay and lesbian
people. But complete foreclosure from meaningful political participation is not the
standard by which the Supreme Court has judged “political powerlessness.” When the
Court ruled in 1973 that gender-based classifications were subject to heightened scrutiny,
Frontiero v. Richardson, 411 U.S. 677 (1973), women already had won major political
victories, including a constitutional amendment granting the right to vote and protection
against employment discrimination under Title VII. As Frontiero makes clear, the
“political power” factor does not require a complete absence of political protection, and its application is not intended to change with every political success.18
iv. Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society.
Even where other factors might point toward heightened scrutiny, the Court has
declined to treat as suspect those classifications that generally bear on “ability to perform
18 In determining that gender classifications warranted heightened scrutiny, the plurality in Frontiero noted that “in part because of past discrimination, women are vastly underrepresented in this Nation’s decisionmaking councils. There has never been a female President, nor a female member of this Court. Not a single woman presently sits in the United States Senate, and only 14 women hold seats in the House of Representatives.” 411 U.S. at 686 n.17 (plurality opinion).
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or contribute to society.” See Cleburne, 473 U.S. at 441 (holding that mental disability is not a suspect classification) (quotation omitted); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312–15 (1976) (holding that age is not a suspect classification).
Sexual orientation is not such a classification. As the history described above makes clear, prior discrimination against gay and lesbian people has been rested not on their ability to contribute to society, but on the basis of invidious and long-discredited views that gays and lesbians are, for example, sexual deviants or mentally ill. See also supra Part I.A.1.i. As the American Psychiatric Association stated more than 35 years ago, “homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities.” Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973); see also Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975) (reflecting a similar American Psychological Association statement).
Just as a person’s gender, race, or religion does not bear an inherent relation to a person’s ability or capacity to contribute to society, a person’s sexual orientation bears no inherent relation to ability to perform or contribute. President Obama elaborated on this principle in the context of the military when he signed the Don’t Ask, Don’t Tell Repeal Act of 2010:
[V]alor and sacrifice are no more limited by sexual orientation than they are by race or by gender or by religion or by creed. . . . There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It’s been lost to
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prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands. White House, Remarks by the President and Vice President at Signing of the Don’t Ask, Don’t Tell Repeal Act of 2010 (Dec. 22, 2010), available at http://www.whitehouse.gov/the-press-office/2010/12/22/remarks-president-and-vi ce-president-signing-dont-ask-dont-tell-repeal-a. The Supreme Court has also recognized that opposition to homosexuality, though it may reflect deeply held personal religious and moral views, is not a legitimate policy objective. Lawrence, 539 U.S. at 577 (“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” (quotation omitted); Romer, 517 U.S. at 635 (noting that a law cannot broadly disfavor gays and lesbians because of “personal or religious objections to homosexuality”). Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the basis of sexual orientation rest on a “factor [that] generally provides no sensible ground for differential treatment,” see Cleburne, 473 U.S. at 440, and thus such laws merit heightened scrutiny. B. DOMA Fails Heightened Scrutiny. For the reasons described above, heightened scrutiny is the appropriate standard by which to review classifications based on sexual orientation, including DOMA Section
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3.19 In reviewing a legislative classification under heightened scrutiny, the government
must establish, at a minimum, that the classification is “substantially related to an
important governmental objective.” Clark, 486 U.S. at 461. Moreover, under any form
of heightened scrutiny, a statute must be defended by reference to the “actual
[governmental] purposes” behind it, not different “rationalizations.” VMI, 518 U.S. at
535–36.
Section 3 fails this analysis.20 The legislative history demonstrates that the statute
was motivated in significant part by animus towards gays and lesbians and their intimate
and family relationships.21 Among the interests expressly identified by Congress in
enacting DOMA was “the government’s interest in defending traditional notions of
morality.” H.R. Rep. No. 104-664, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905
19 The government takes no position on whether sexual orientation classifications should be considered suspect, as opposed to quasi-suspect, and therefore whether DOMA should be subject to intermediate or strict scrutiny. 20 Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard. 21 We note that some members of the majority in Congress that enacted DOMA have changed their views on the law, and the legitimacy of its rationales, since 1996. See, e.g., Bob Barr, No Defending the Defense of Marriage Act, L.A. Times (Jan. 5, 2009), available at http://www.latimes.com/news/politics/newsletter/la-oe-barr5-2009jan05,0,2810156. story?track=newslettertext. In reviewing the statute under heightened scrutiny, however, what is relevant are the views of Congress at the time of enactment, as evidenced by the legislative record.
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(“H.R. Rep.”). The House Report repeatedly claims that DOMA upholds “traditional notions of morality” by condemning homosexuality, and by expressing disapproval of gays and lesbians and their committed relationships. See, e.g., H.R. Rep. at 15–16 (“[J]udgment [opposing same-sex marriage] entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”); id. at 16 (stating that same-sex marriage “legitimates a public union, a legal status that most people . . . feel ought to be illegitimate” and “put[s] a stamp of approval . . . on a union that many people . . . think is immoral” (quotation omitted)); id. at 15 (“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality.”); id. at 33 (favorably citing the holding in Bowers that an “anti-sodomy law served the rational purpose of expressing the presumed belief . . . that homosexual sodomy is immoral and unacceptable” (quotation omitted)).
The House Report also explicitly stated an interest in extending legal preferences to heterosexual couples in various ways to “promote heterosexuality” and discourage homosexuality. H.R. Rep. at 15 n.53 (“Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. . . . Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality . . . .”). Thus, one of the goals of DOMA was to provide gays and lesbians with an incentive to abandon or at least to hide from view a core aspect of
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their identities, which legislators regarded as immoral and inferior. This record evidences the kind of animus and stereotype-based thinking that the
Equal Protection Clause is designed to guard against. Cf. Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”); see also Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“[The Supreme Court] ha[s] consistently held . . . that some objectives, such as a bare desire to harm a politically unpopular group, are not legitimate state interests.” (quotation and alteration omitted)). And even if Congress’s opposition to gay and lesbian relationships could be understood as reflecting moral or religious objections, that would remain an impermissible basis for sexual-orientation discrimination. See supra Part I.A.1.iv; see also Romer, 517 U.S. at 635 (noting that law cannot broadly disfavor gays and lesbians because of “personal or religious objections to homosexuality”). Discouraging homosexuality, in other words, is not a governmental interest that justifies sexual orientation discrimination.
Nor is there some other important governmental interest identified by Congress and substantially advanced by Section 3 of DOMA, as required under heightened scrutiny. In addition to expressing bare hostility to gay and lesbian people and their relationships, the House Report articulated an interest in “defending and nurturing the institution of traditional, heterosexual marriage.” H.R. Rep. at 12. That interest does not
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support Section 3. As an initial matter, reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles. VMI, 518 U.S. at 535 (invalidating longstanding tradition of single-sex education at Virginia Military Institute). But even if it were possible to identify a substantive and animus-free interest in protecting “traditional” marriage on this record, there would remain a gap between means and end that would invalidate Section 3 under heightened scrutiny. Section 3 of DOMA has no effect on recognition of the same-sex marriages Congress viewed as threatening to “traditional” marriage; it does not purport to defend “traditional, heterosexual marriage” by preventing same-sex marriage or by denying legal recognition to such marriages. Instead, Section 3 denies benefits to couples who are already legally married in their own states, on the basis of their sexual orientation and not their marital status. Thus, there is not the “substantial relationship” required under heightened scrutiny between an end of defending “traditional” marriage and the means employed by Section 3.
The same is true of Congress’s interest in promoting “responsible procreation and child-rearing,” which the House Report identified not as a separate rationale for DOMA Section 3, but as the basis for its larger interest in defending “the institution of traditional, heterosexual marriage.” See, e.g., H.R. Rep. at 12–13 (“At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and
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child-rearing.”); id. at 14 (“Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”) (emphasis added). Again, even assuming that Congress legislated on the basis of an independent and animus-free interest in promoting responsible procreation and child-rearing, that interest is not materially advanced by Section 3 of DOMA and so cannot justify that provision under heightened scrutiny.
First, there is no sound basis for concluding that same-sex couples who have committed to marriages recognized by state law are anything other than fully capable of responsible parenting and child-rearing. To the contrary, many leading medical, psychological, and social welfare organizations have issued policies opposing restrictions on lesbian and gay parenting based on their conclusions, supported by numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents. See, e.g., American Academy of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents (Feb. 2002), available at http://aappolicy.aappublications.org/cgi/content/full/pediatrics;109/2/339; American Psychological Association, Sexual Orientation, Parents, & Children (July 2004), available at http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child and Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement (2009), available at http://www.aacap.org/cs/root/
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policy_statements/gay_lesbian_transgender_and_bisexual_parents_policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, available at http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groupssections/glbt-advisory-committee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, available at http://www.cwla.org/ programs/culture/glbtqposition.htm. For this reason alone, no penalty or prohibition on same-sex marriage can be “substantially” related to an interest in promoting responsible child-rearing.
Second, there is no evidence in the legislative record that denying federal benefits to same-sex couples legally married under state law operates in any way to encourage responsible child-rearing, whether by opposite-sex or same-sex couples, and it is hard to imagine what such evidence would look like. In enacting DOMA, Congress expressed the view that marriage plays an “irreplaceable role” in child-rearing. H.R. Rep. at 14. But Section 3 does nothing to affect the stability of heterosexual marriages or the childrearing practices of heterosexual married couples. Instead, it denies the children of same-sex couples what Congress sees as the benefits of the stable home life produced by legally recognized marriage, and therefore, on Congress’s own account, undermines rather than advances an interest in promoting child welfare.
Finally, as to “responsible procreation,” even assuming an important
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governmental interest in providing benefits only to couples who procreate, Section 3 is
not sufficiently tailored to that interest to survive heightened scrutiny. Many state-
recognized same-sex marriages involve families with children; many opposite-sex
marriages do not. And ability to procreate has never been a requirement of marriage or
of eligibility for federal marriage benefits; opposite-sex couples who cannot procreate
for reasons related to age or other physical characteristics are permitted to marry and to
receive federal marriage benefits. Cf. H.R. Rep. at 14 (noting “that society permits
heterosexual couples to marry regardless of whether they intend or are even able to have
children” but describing this objection to DOMA as “not a serious argument”).22
In sum, the official legislative record makes plain that DOMA Section 3 was
motivated in substantial part by animus toward gay and lesbian individuals and their
intimate relationships, and Congress identified no other interest that is materially
advanced by Section 3. Section 3 of DOMA is therefore unconstitutional. The
22 The House Report also identifies preservation of scarce government resources as an interest underlying Section 3’s denial of government benefits to same-sex couples married under state law. See H.R. Rep. at 18. In fact, many of the rights and obligations affected by Section 3, such as spousal evidentiary privileges and nepotism rules, involve no expenditure of federal funds, and in other cases, exclusion of state-recognized same-sex marriages costs the government money by preserving eligibility for certain federal benefits. But regardless of whether an interest in preserving resources could justify Section 3 under rational basis review, it is clear that it will not suffice under heightened scrutiny; the government may not single out a suspect class for exclusion from a benefits program solely in the interest of saving money. See, e.g., Graham v. Richardson, 403 U.S. 365, 374–75 (1971) (holding that state may not advance its “valid interest in preserving the fiscal integrity of its programs” through alienage-based exclusions).
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judgment of the district court in Gill should therefore be affirmed. II. DOMA Violates the Spending Clause by Imposing an Unconstitutional
Condition on the Receipt of Federal Funds. The Constitution authorizes Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, § 8, cl. 1. It is well-settled that “Congress may attach conditions on the receipt of federal funds,” South Dakota v. Dole, 483 U.S. 203, 206 (1987), and “may fix the terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The spending power is “‘not limited by the direct grants of legislative power found in the Constitution,’” but can be used to achieve broad policy objectives beyond Article I’s “‘enumerated legislative fields.’” Dole, 483 U.S. at 207 (citations omitted); see also Printz v. United States, 521 U.S. 898, 936 (1997) (O’Connor, J., concurring) (contrasting an impermissible command with the imposition of a condition on acceptance of federal funds). Accordingly, “Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions.” College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999). Although statutes that impose conditions on the receipt of federal funds or on the collection of federal taxes generally raise no constitutional concerns under the Spending
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Clause, the Court in Dole identified four limitations on Congress’s spending power. First, the Spending Clause by its terms requires that Congress legislate in pursuit of “‘the general welfare.’” Dole, 483 U.S. at 207 (quoting Art. I, § 8, cl. 1). Second, if Congress places conditions on the states’ receipt of federal funds, it “‘must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’” Id. (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, the Supreme Court’s cases “have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’” Dole, 483 U.S. at 207 (internal citation omitted). And fourth, the obligations imposed by Congress may not violate any independent constitutional provision. Id. at 208. As the Court in Dole explained, this limitation reflects “the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” Id. at 210.
DOMA prescribes the terms and conditions of federally funded programs and federal tax schemes, so it is within the Spending Clause’s general grant of authority to Congress. The district court’s holding in Massachusetts that DOMA exceeds Congress’s authority under the Spending Clause turned entirely on the fourth Dole limitation.23
23 Massachusetts also claimed that DOMA is not germane to the purposes of the Medicaid and State Cemetery grant programs. JA 34–35 (Mass. Compl. ¶¶ 87–98). The district court did not decide this issue, and Massachusetts’s claim is, in any event, wholly without merit. The purposes and terms of each of these programs are defined by
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Because the court had already concluded in Gill that DOMA violates equal protection, it similarly held that Congress could not force Massachusetts to violate equal protection, applicable to Massachusetts through the Fourteenth Amendment, as a condition of the receipt of federal funds. JA 659–60 (Mass. Op. 26–27).
As demonstrated above, DOMA Section 3 violates equal protection. Therefore, it violates the Spending Clause by imposing an unconstitutional condition on Massachusetts, and the judgment of the district court in Massachsusetts should be affirmed on this ground. III. DOMA Does Not Violate the Tenth Amendment by Interfering with State
Sovereignty. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Under Supreme Court precedent, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505
Congress, not by Massachusetts, and Congress is free to modify a program as it sees fit. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“[O]ur cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States.”). In the event this Court determines that DOMA Section 3 does not violate equal protection, it should also hold that Section 3 represents a valid exercise of Congressional authority under the Spending Clause.
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U.S. 144, 156 (1992). “It is in this sense that the Tenth Amendment ‘states but a truism that all is retained which has not been surrendered.’” Id. (quoting United States v. Darby, 312 U.S. 100, 124 (1941)). This Court has similarly held that the Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power.” United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997); see also United States v. Lewko, 269 F.3d 64, 66–70 (1st Cir. 2001); United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999). Because, as shown above, DOMA Section 3 is inconsistent with the Equal Protection Clause and, as a result, is also not authorized by the Spending Clause, this Court need not reach the Tenth Amendment argument.
However, in the event this Court determines that DOMA Section 3 does not violate equal protection and therefore represents a valid exercise of Congressional authority under the Spending Clause, it should also hold that DOMA does not violate the Tenth Amendment. Massachusetts has not raised a commandeering claim,24 see New York, 505 U.S. at 161; Printz v. United States, 521 U.S. 898, 907–08 (1997), and if DOMA is supported by the Spending Clause, it plainly does not violate the Tenth Amendment.
Despite clear precedent holding to the contrary, Massachusetts claims that, even if DOMA is authorized by the Spending Clause, Section 3 of DOMA violates the Tenth
24 Massachusetts’s complaint alleged that DOMA unconstitutionally commandeered state regulatory authority under New York v. United States, 505 U.S. 144 (1992), JA 33 (Mass. Compl. ¶ 86), but the state abandoned that claim in its motion for summary judgment before the district court, Mass. Mem. in Supp. of Mot. for Summary Judgment at 22.
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Amendment because it “creat[es] an extensive federal regulatory scheme that interferes with and undermines the Commonwealth’s sovereign authority to define marriage and to regulate the marital status of its citizens.” JA 33 (Mass. Compl. ¶ 85). The district court agreed with Massachusetts, applying the three part Tenth Amendment test from National League of Cities v. Usery, 426 U.S. 833 (1976), which was explicitly overruled in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 531 (1985).
The district court did not cite National League of Cities in applying that test; instead, it cited this Court’s decision in United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997), which post-dated Garcia and cited, in dicta, Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 287–88 (1981), for this three part test. The part of Hodel to which Bongiorno referred, however, relied entirely on National League of Cities and therefore was plainly overruled by Garcia as well. This dicta in Bongiorno, even if it has not been overturned by this Court, is inconsistent with Supreme Court precedent. Regardless, as noted above, when there is no commandeering issue, Bongiorno itself holds that the Tenth Amendment “is not applicable to situations in which Congress properly exercises its authority under an enumerated constitutional power.” Bongiorno, 106 F.3d at 1033. Accordingly, the district court’s Tenth Amendment holding plainly conflicts with Supreme Court case law.
Nonetheless, even if the existence of congressional authority under the Spending Clause would not defeat Massachusetts’s claim—which, of course, it would if this Court
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determines that DOMA does not violate equal protection—the premises of the claim are flawed. It may be true that domestic relations have traditionally been regulated by the states—states traditionally decide who may marry, the dissolution of marriage, division of marital property, child custody, and the payment and amount of alimony or child support. See, e.g., Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (describing limited statutory domestic relations exception to federal court jurisdiction). However, Section 3 of DOMA in no way displaces any state laws in these areas, and leaves entirely unaffected Massachusetts’s interest in defining family relations under its own law within its own borders. Massachusetts can still issue marriage licenses on whatever terms it decides are appropriate and can grant same-sex couples all of the same benefits under state law it grants to opposite-sex couples.
Therefore, the essence of Massachusetts’s claim is a contention that DOMA violates the Tenth Amendment by interfering with an asserted sovereign power of a state to define the meaning of the words “marriage” and “spouse” under federal law. Massachusetts thus asserts for the states the sovereign authority to define provisions of federal law. While the Constitution reserves various powers to the states, defining the meaning and scope of federal statutes is certainly not among them. As discussed above with respect to the Spending Clause, a federal statute’s meaning and terms are defined by Congress. See, e.g., Atlantic Fish Spotters Ass’n v. Evans, 321 F.3d 220, 223–24 (1st Cir. 2003); United States v. Ahlers, 305 F.3d 54, 57–58 (1st Cir. 2002).
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Furthermore, it does not matter whether Congress has legislated on an issue previously. Congressional inaction does not remove an area from Congress’s authority. Moreover, it is not true, as the district court held, that DOMA represents the first time that Congress has departed from state definitions of family law for purposes of federal law. JA 662–65 (Mass. Op. 29–32). Independent of DOMA, there are a multitude of different federal programs that do not accept wholesale a state definition of marriage or its attributes. Many of them, like DOMA, do not adhere to definitions of family law terms as set forth under state law. Immigration law, where the federal government will look behind the existence of a state marriage for evidence of fraud, is one example. 8 U.S.C. § 1186a(b)(1)(A)(i); 8 C.F.R. § 216.3. Similarly, under ERISA, Congress has provided that the terms of an ERISA plan supersede state community property law—a matter typically regarded as being of fundamental importance in the regulation of marriage by those states that have such regimes. See Egelhoff v. Egelhoff, 532 U.S. 141, 151–52 (2001) (discussing Boggs v. Boggs, 520 U.S. 833 (1997)); see also Hisquierdo v. Hisquierdo, 439 U.S. 572, 581–83 (1979) (holding that federal provisions for payment of benefits under Railroad Retirement Act preempt state community property law; discussing other cases in which state family law was found to be preempted). Other examples include the Food Stamps program, 7 U.S.C. § 2012(n)(1)(B) (defining the term “household” as, inter alia, “a group of individuals who live together and customarily purchase food and prepare meals together for home consumption”); the tax code, 26
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U.S.C. § 7703(b) (departing from state definition of “married” to exclude “certain married individuals living apart”); the Social Security Act, 42 U.S.C. § 416(a)–(g) (defining the terms “spouse,” “wife,” “widow,” “divorce,” “child,” “husband,” and “widower” for the purposes of federal law in ways that depart from underlying state definitions); veterans’ benefits, 38 U.S.C. § 101(3) (defining “surviving spouse” as “a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death . . . and who has not remarried”); and many laws relating to the benefits offered to federal employees, see, e.g., 5 U.S.C. § 8101(6)–(11) (defining the terms “widow,” “parent,” “brother,” “sister,” “child,” “grandchild,” and “widower”); 5 U.S.C. § 8341(a)(1)(A)–(a)(2)(A) (defining “widow” as “the surviving wife of an employee or Member” who “was married to him for at least 9 months immediately before his death” or “the mother of issue by that marriage,” and providing a similar definition for “widower”).
This list, which is hardly exhaustive, demonstrates that, for the purposes of the Tenth Amendment question, the district court was incorrect in finding that the federal government has previously simply incorporated state law definitions of marriage for purposes of eligibility under federal programs. Indeed, this Court has repeatedly upheld federal statutes that affect domestic relations law in various ways. See, e.g., Lewko, 269 F.3d at 66–70 (upholding the Child Support Recovery Act of 1992, 18 U.S.C. § 228(a)(1),
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and the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228(a)(3)); Meade, 175 F.3d at 224 (upholding 18 U.S.C. § 922(g)(8), which criminalizes the possession of firearms by individuals who have been subject to a judicial anti-harassment or anti-stalking order).
Therefore, we respectfully submit that DOMA does not impermissibly interfere with state sovereignty. In the event this Court determines that Section 3 does not violate equal protection and therefore is authorized by the Spending Clause, it should hold that DOMA does not violate the Tenth Amendment.
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CONCLUSION

For the foregoing reasons, this Court’s precedents applying rational basis review

to sexual orientation classifications should be reconsidered, and the judgments of the

district court should be affirmed on the ground that Section 3 of DOMA is subject to

heightened scrutiny and, under that standard, is unconstitutional as applied to same-sex

couples married under state law.

Respectfully submitted,

TONY WEST Assistant Attorney General

CARMEN M. ORTIZ United States Attorney

ROBERT E. KOPP

/s/ Michael Jay Singer MICHAEL JAY SINGER
(202) 514-5432

/s/ August E. Flentje AUGUST E. FLENTJE
(202) 514-3309

/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253

SEPTEMBER 2011

Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, I hereby
certify that this brief complies with the type-volume limitation in Rule 32(a)(7)(B). The
foregoing brief is presented in proportionally spaced font typeface using Corel
WordPerfect X4 in 14-point Garamond font. The brief, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii), contains 15,714 words, as counted by Corel
WordPerfect X4, which is within the word limit of 21,000 words set by this Court’s
Order of November 24, 2010, for the principal brief of Appellants/Cross-Appellees.
/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY
(202) 353-8253 Attorney, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2011, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the First Circuit
by using the appellate CM/ECF system. I further certify that all participants in the case
are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY
(202) 353-8253 Attorney, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 7261 Washington, D.C. 20530-0001

ADDENDUM

TABLE OF CONTENTS

Page

Commonwealth of Massachusetts v. United States Department of Health and Human Services, et al.. . . . . . . . . . . . . . . . . . . . Add. 1

Order of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 2

Memorandum of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 3

Judgment of August 12, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 39

Gill, et al. v. Office of Personnel Management, et al... . . . . . . . . . . . . . . . . Add. 41

Order of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 42

Memorandum of July 8, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 43

Amended Judgment of August 17, 2010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 82

Statutory Addendum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 88

Commonwealth of Massachusetts v.
United States Department of Health and Human Services, et al.
Add. 1

Case 1:09-cv-11156-JLT Document 57 Filed 07/08/10 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the Secretary *

of the United States Department of Health and *

Human Services; UNITED STATES

*

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as the *

Secretary of the United States Department of

*

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 1:09-11156-JLT

ORDER July 8, 2010 TAURO, J. For the reasons set forth in the accompanying Memorandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ Joseph L. Tauro United States District Judge

Add. 2

Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 1 of 36

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the Secretary *

of the United States Department of Health and *

Human Services; UNITED STATES

*

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as the *

Secretary of the United States Department of

*

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 1:09-11156-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth

11 U.S.C. § 7.
2Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
Add. 3

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Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED.3 II. Background4
A. The Defense of Marriage Act Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”6
3In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.
4Defendants, with limited exception, concede the accuracy of Plaintiff’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
61 U.S.C. § 7. 2
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As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Accounting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10 In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and protections of the federal Constitution) for the
7Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO-04-353R).
8Id. at 1. 9Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10Id. 11Id., ¶ 10.
3
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Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 4 of 36
health, safety and welfare of their populations.”12 In large part, rules and regulations regarding marriage corresponded with local
circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.”16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of

12Id. 13Id. 14Id. 15Id., ¶ 14. 16Id. 17Id., ¶¶ 15, 18-19. 18Id., ¶ 19.

4
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constitutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.”20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.”21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status determinations
19Id. 20Id. 21Id. 22Id. 23See id., ¶¶ 20-52. 24Id.
5
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for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.”29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.”31
25Id., ¶ 45. 26Defs.’ Mem. Mot. Dismiss, 27. 27See Cott Aff., ¶¶ 36, 44. 28Id., ¶ 35. 29Id. 30Id., ¶ 37. 31Id.
6
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Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 7 of 36
In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from African-American voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39 Throughout this entire period, however, the federal
32Id., ¶ 36. 33Id. 34Id., ¶ 38. 35Id. 36Id. 37Id., ¶ 38. 38Id., ¶ 43. 39In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these
7
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government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.”43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44 As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recognition of these marriages, the Commonwealth contends that the statute has a significant negative impact on the
statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40Cott Aff., ¶ 45. 41Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43Compl. ¶ 17. 44Id., ¶¶ 18-19. 45Nyberg Aff., ¶¶ 6-7.
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Case 1:09-cv-11156-JLT Document 58 Filed 07/08/10 Page 9 of 36
operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47Id. 48Id., ¶ 4. 49Id., ¶ 4. 50Walls Aff., ¶ 8 (citations omitted). 51Id.
9
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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.”55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
The VA regulations require that veterans’ cemeteries “be operated solely for the interment
52Id., ¶ 5. 53Id., ¶ 5. 54Id., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department...”)). 55Id., ¶ 6. 5638 U.S.C. § 2408(c). 57Walls Aff., ¶ 10.
10
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of veterans, their spouses, surviving spouses, [and certain of their] children....”58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.”60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.”61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.”62
5838 C.F.R. § 39.5(a). 59Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services (June 18, 2004). 60Id. 61Walls Aff., Ex. 2, NCA Directive 3210/1 (June 4, 2008). 62Walls Aff., ¶ 20.
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On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (1-3), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which recognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government,
63Walls Aff., Ex. 3, Copy of Approved Application. 64Walls Aff., ¶ 22, Ex. 4, Marriage License. 65Walls Aff., ¶ 23. 66Id. 67Id., ¶ 24. 68Id., ¶ 25. 69Id., ¶ 26.
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Thomas Hopkins is ineligible for burial in Winchendon.70 Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the
Winchendon cemetery and intends to bury the couple together.71 2. MassHealth
Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74
MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately one-half of its Medicaid expenditures76 and administration costs.77 HHS provides MassHealth with billions of
70Id., ¶ 26. 71Id., ¶¶ 21, 27. 72Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73Id. 74Id., ¶¶ 2, 5. 75Id., ¶ 5. 76Id., ¶ 7. 77Id., ¶ 7.
13
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dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for Medicaid when assessed as single, even though they would qualify if assessed as married.85
78Id., ¶ 6. 79Id., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report (June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80Id., ¶ 8. 81Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82Id., ¶ 9. 83Id., ¶ 11. 84Id., ¶ 14. 85Id.
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The Commonwealth contends that, under certain circumstances, the recognition of samesex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible. 89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the $43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse

86Id., ¶ 11. 87Id., ¶ 11. 88Id., ¶ 11. 89Id., ¶ 12. 90Id., ¶ 12. 91Id., ¶ 12.

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earning $7,000 per year is eligible for Medicaid coverage.92 After the Commonwealth began recognizing same-sex marriages in 2004, MassHealth
sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.”95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.”96 In addition, CMS stated that “because same sex couples are not spouses
92Id., ¶ 12. 93Id., ¶ 15. 94Id., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61. 96Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21,
16
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under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.”97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.”98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
3. Medicare Tax Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s
2008). 97Id. 98Id. 99Callahan Aff., ¶ 22. 100Id., ¶ 23. 101Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26
C.F.R. § 1.106-1). 17
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same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing same-sex marriages, and December 2009.107
Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of
102McHugh Aff., ¶ 4. 103Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104Id. 105Id. 106Id., ¶ 7. 107Id., ¶ 8.
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imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion A. Summary Judgment Summary judgment is appropriate where there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
B. Standing This court first addresses the government’s contention that the Commonwealth lacks
108Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109Id., ¶ 10. 110Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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standing to bring certain claims against the VA and HHS.113 “The irreducible constitutional minimum of standing” hinges on a claimant’s ability to
establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.”115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarly-situated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not
113The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115Defs.’ Mem. Mot. Dismiss, 32.
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required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely...speculative.”117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish
116See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007). 117Def.’s Mem. Mot. Dismiss, 34.
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marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”120 The division between state and federal powers delineated by the Constitution is not merely “formalistic.”121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.”122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is
118New York v. United States, 505 U.S. 144, 156 (1992). 119United States v. Morrison, 529 U.S. 598, 607 (2000). 120U.S. CONST. Amend. X. 121New York v. United States, 505 U.S. 144, 187 (1992). 122Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123Id.
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authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.”124
Since, in essence, “the two inquiries are mirror images of each other,”125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or more of its powers enumerated in the Constitution.”126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.”127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
124New York, 505 U.S. at 155. 125Id. at 156. 126United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)). 127United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)). 128Morrison, 529 U.S. at 607.
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The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdictional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal
129See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause).
130529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”).
131United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce”).
132U.S. CONST. art. I, § 8. 24
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statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133
It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.”137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole
133Pl.’s Reply Mem., 3. 134Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). 135South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136483 U.S. 203 (1987). 137Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).
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requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to...legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’”139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.”140
138Dole, 483 U.S. at 210. 139Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140Id. (internal citation omitted).
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In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the same-sex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal
141Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).
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funding, this court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.”142
A. DOMA Regulates the Commonwealth “as a State” With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam and Winchendon should the same-sex spouse of a veteran
142106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass'n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).
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be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.”144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and paternity,”145 is often held out as the archetypal area of local concern.146
143The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568). 145Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 146See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the
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The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action...can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.”148
State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard
Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 30
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their states’ areas of sovereign concern. The history of the regulation of marital status determinations therefore suggests that this
area of concern is an attribute of state sovereignty, which is “truly local” in character. That same-sex marriage is a contentious social issue, as the government argues, does not
alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect
149See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
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of marriage, divorce, and childrearing on the national economy is undoubtedly significant.”150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.”153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of
150529 U.S. at 615 (emphasis added). 151542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted). 152Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process. 153Defs.’ Reply Mem., 5.
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statehood.

C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions

Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its

154United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’” were “abandon[ed] ... as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
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separate and independent existence.”155 And, in view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.”156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury same-sex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an application for the burial of Thomas Hopkins, the same-sex partner of Darrel
155United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 64552 (2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.
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Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on the “core of sovereignty retained by the States,”157 because “the Constitution ... divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of
157New York, 505 U.S. at 159. 35
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the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge

158Id. at 187.

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF MASSACHUSETTS, *

*

Plaintiff,

*

*

v.

*

*

UNITED STATES DEPARTMENT OF HEALTH *

AND HUMAN SERVICES; KATHLEEN

*

SEBELIUS, in her official capacity as the

*

Secretary of the United States Department of

*

Health and Human Services; UNITED STATES *

DEPARTMENT OF VETERANS AFFAIRS;

*

ERIC K. SHINSEKI, in his official capacity as *

the Secretary of the United States Department of *

Veterans Affairs; and the UNITED STATES OF *

AMERICA,

*

*

Defendants.

*

Civil Action No. 09-11156-JLT

JUDGMENT

August 12, 2010

TAURO, J.

Having allowed Plaintiff’s Motion for Summary Judgment [#26], this court hereby enters

the following judgment in this action:

1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law

recognizes marriages between same-sex couples.

2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et

seq. is unconstitutional as applied in Massachusetts, where state law recognizes

marriages between same-sex couples.

3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is

unconstitutional as applied in Massachusetts, where state law recognizes marriages

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Case 1:09-cv-11156-JLT Document 63 Filed 08/12/10 Page 2 of 2 between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ Joseph L. Tauro United States District Judge
2
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Hara and Gill, et al., v.
Office of Personnel Management, et al.
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Case 1:09-cv-10309-JLT Document 69 Filed 07/08/10 Page 1 of 1

lil\ITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

• NA~CY GILL & MARCELLE LETOURNEAU,

et ai.,

•

•

Plaintiffs,

•

•

v,

• *

OFFICE OF PERSONNEL MANAGEME~T,

•

et aI.,

•

•

Defendants.

•

•

Civil Action ~o, 09-10309-JLT

ORDER July 8, 2010 TACRO, 1. For the reasons set forth in the accompanying Memorandum, this court hereby orders that: 1. Defendants' Motion to Dismiss [#20J is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant's Motion to Dismiss [#20J is DENIED as to all claims, except Plaintiff Dean Hara's claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs' Motion for SummaW Judgment [#25J is ALLOWED. IT IS SO ORDERED.

d States District Judge

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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 1 of 39

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

NANCY GILL & MARCELLE LETOURNEAU, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

*

OFFICE OF PERSONNEL MANAGEMENT, *

et al.,

*

*

Defendants.

*

*

Civil Action No. 09-10309-JLT

MEMORANDUM July 8, 2010
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically, Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual

11 U.S.C. § 7.
2Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 2 of 39
couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, 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.6 In large part, the enactment of DOMA can be understood as a direct legislative response
3Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5Pub. L. No. 104-199, 110 Stat. 2419 (1996) 61 U.S.C. § 7.
2
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 3 of 39
to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.”10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.”11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “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.12
7852 P.2d 44 (Haw. 1993). 8See id. at 59-67. 9Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside. 10Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”]. 11Id. at 10. 12Id. at 2.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 4 of 39
In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, 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.”14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.”16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’”17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.”18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’
13Section 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.”
14Id. at 25. 15Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16Id. at 3. 17Id. at 12. 18Id. 19Id. at 13, 18.
4
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 5 of 39
“moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”20 In one unambiguous expression of these
objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated
that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.”21
In the floor debate, members of Congress repeatedly voiced their disapproval of
homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion” and “an attack upon God’s principles.”22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.”24
Although DOMA drastically amended the eligibility criteria for a vast number of different
federal benefits, rights, and privileges that depend upon marital status, the relevant committees did
20Id. at 16 (footnote omitted). 21142 CONG. REC. H7480 (daily ed. July 12, 1996). 22142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith). 23Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle–these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle... Homosexuals and lesbians boast that they are close to realizing their goal–legitimizing their behavior.... At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”). 24Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).
5
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 6 of 39
not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined, prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
25House Report at 10-11. 26Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-97-16). 27U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
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1. Health Benefits Based on Federal Employment Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program. Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses. Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers must meet in order to offer coverage under
28“Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B). 295 U.S.C. § 8905.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 8 of 39
the program.30 The Office of Personnel Management (“OPM”) administers the FEHB and is empowered
to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,”32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.”33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age....”37 An employee enrolled in the FEHB for “self only” coverage may change to “self and family” coverage by submitting documentation to the
30Id. §§ 8901-8914. 31Id. §§ 8902, 8903, 8906. 32Id. § 8913. 33Id. 34Id. § 8906. 35Id. §§ 8905, 8906. 365 C.F.R. § 890.302(a)(1). 37Id. § 8901(5).
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 9 of 39
employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.”38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee...or of a retired employee....”39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.”40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and
38See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39See 5 U.S.C. § 8901(3)(B). 405 C.F.R. § 890.303(c). 415 U.S.C. §§ 8951, 8952, 8981, 8982. 42Id. §§ 8951, 8954, 8981, 8984.
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sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.”47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.”48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
C. Flexible Spending Arrangement Program50 A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in
43Id. §§ 8952(a), 8953, 8982(a), 8983. 44Id. §§ 8962(a), 8992(a). 45Id. §§ 8958(a), 8988(a). 46Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47Id. § 894.201(c). 48Id. 894.509(a), (b). 49See 5 U.S.C. §§ 8951(2), 8991(2). 50Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program”. Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 11 of 39
an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent] provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.”55 A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert
5126 U.S.C. § 125. 52See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 5442 U.S.C. §§ 901, 902. 55Id. § 405(a); see id. § 902(a)(5).
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Burtis seeks Widower’s Insurance Benefits. A. Retirement Benefits
The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].”57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving
56Id. §§ 402, 413(a), 414, 415. 57Id. § 402(b), (c). 58The Social Security Act also provides for a Widow's Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower's Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male. 59Id. §§ 402(I), 413(a), 414(a), (b).
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the individual’s lifetime earnings.60 ii. Widower’s Insurance Benefit
The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or self-employment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
3. Filing Status Under the Internal Revenue Code Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.”63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return
60Id. §§ 402(I), 415(a). 61Id. §§ 402(f), 413(a), 414(a), (b). 62Id. § 402(f)(1); see id. § 402(f)(3). 6326 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
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within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.”67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68 B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
64Id. § 6013(b)(1), (2). 65Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 67Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.
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“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation–a fairly traceable connection between the plaintiff’s injury and the complainedof conduct of the defendant. And third, there must be redressability–a likelihood that the requested relief will redress the alleged injury.”69 Where the plaintiff lacks standing to pursue his claim, the court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of
69Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
70FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 715 U.S.C. § 8905(b). 725 U.S.C. § 8347(b). 73See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985).
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the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of
74The appeal, however, has been stayed pending the outcome of this action. 16
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DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annuity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a
75See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).
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ceiling, to coverage eligibility. Plaintiffs assert, therefore, that OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.”76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.”77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.”78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.”79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.”80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot
765 C.F.R. § 890.302(a)(1) (emphasis added). 77One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 785 U.S.C. § 8901(5) (emphasis added). 79United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 801 U.S.C. § 7.
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plausibly interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’”83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’”84 And it is because of this “commitment to the law’s neutrality where the rights of persons are at stake”85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional
81Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).
85Romer, 517 U.S. at 623. 19
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scrutiny.86 To say that all citizens are entitled to equal protection of the laws is “essentially a direction
[to the government] that all persons similarly situated should be treated alike.”87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest.90
Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
86Id. 87City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89Id. 90Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.
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• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship”91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity...[and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
91Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted). 92Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted). 93Id. (internal citations omitted). 94Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted).
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Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.”95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.”96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].”97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.”98
Importantly, the objective served by the law must be not only a proper arena for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.”100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”101 As such, a law
95Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96Romer, 517 U.S. at 633. 97Id. 98Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). 99Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441). 100Heller v. Doe, 509 U.S. 312, 321 (1993). 101City of Cleburne, 473 U.S. at 447.
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must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.”102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”104 This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare
102Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103House Report at 12-18. 104City of Cleburne, 473 U.S. at 446. 105See Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10.
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communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the time of DOMA’s
passage that children had the best chance at success if raised jointly by their biological mothers
and fathers, a desire to encourage heterosexual couples to procreate and rear their own children
more responsibly would not provide a rational basis for denying federal recognition to same-sex
marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it
“prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,”107 when afforded equal recognition under federal
law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a
rational basis upon which to exclude same-sex marriages from federal recognition because, as
Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile
106Def.’s Mem. Supp. Mot. Dismiss, 19 n. 10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy.aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http://www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America,Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/culture/glbtqposition.htm).
107Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting).
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and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.”112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at
109Id. 110Romer, 517 U.S. at 632-33. 111Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112Id.
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the very least mean”113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.”114
Neither does the Constitution allow Congress to sustain DOMA by reference to the
objective of defending traditional notions of morality. As the Supreme Court made abundantly
clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State
has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....”115
And finally, Congress attempted to justify DOMA by asserting its interest in the
preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.”117 This
court can discern no principled reason to cut government expenditures at the particular expense of
113United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone). 115Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)). 116This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of same-sex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages. 117Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).
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Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation. In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits. In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118City of Cleburne, 473 U.S. at 448. 27
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For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges. There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be
119See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
120See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring). 121See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.).
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determined by state, rather than federal law. This is especially true where a statute deals with a
familiar relationship [because] there is no federal law of domestic relations.”122
This conclusion is further bolstered by an examination of the federal government’s
historical treatment of state marital status determinations.123 Marital eligibility for heterosexual
couples has varied from state to state throughout the course of history. Indeed, pursuant to the
sovereign power over family law granted to the states by virtue of the federalist system, as well as
the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to
which States lay claim by right of history and expertise,”124 individual states have changed their
marital eligibility requirements in myriad ways over time.125 And yet the federal government has
fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid
for federal purposes any heterosexual marriage which has been declared valid pursuant to state
law.126
122DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted). 123This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010) (Tauro, J.). 124United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring). 125See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982). 126See, e.g., Dunn v.Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3)
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By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other
(Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1(j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any state-sanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967). 128Def.’s Reply Mem., 14. 129See NANCY COTT, PUBLIC VOWS 163 (2000).
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similarly politically-charged, protracted, and fluid debates at the state level as to who should be
permitted to marry.130
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding
history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a
congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the
new statute and pre-existing federal interests.”131 And the absence of precedent for the legislative
classification at issue here is equally instructive, for “‘discriminations of an unusual character
especially suggest careful consideration to determine whether they are obnoxious to the
[C]onstitution[]....’”132
The government is certainly correct in its assertion that the scope of a federal program is
generally determined with reference to federal law. But the historically entrenched practice of
incorporating state law determinations of marital status where they are relevant to federal law
130Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 614-15 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view that, in the United States, for the most part, family law is state law.... Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted). 132Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).
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reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo might help to achieve. Staying the course is not an end in and of
133See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D.Mass. July 8, 2010).
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itself, but rather a means to an end. Even assuming for the sake of argument that DOMA
succeeded in preserving the federal status quo, which this court has concluded that it did not, such
assumption does nothing more than describe what DOMA does. It does not provide a
justification for doing it. This court does not doubt that Congress occasionally encounters social
problems best dealt with by preserving the status quo or adjusting national policy incrementally.134
But to assume that such a congressional response is appropriate requires a predicate assumption
that there indeed exists a “problem” with which Congress must grapple.135
The only “problem” that the government suggests DOMA might address is that of state-
to-state inconsistencies in the distribution of federal marriage-based benefits. But the
classification that DOMA effects does not bear any rational relationship to this asserted interest in
134The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
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consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects
136RSA 457:4-5. 137City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
34
Add. 76

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 35 of 39
from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex marriage”139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws–that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the
138See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications...made no sense in light of how the [government] treated other groups similarly situated”).
139Def.’s Mem. Opp. Summ. Judg., 16. 35
Add. 77

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 36 of 39
suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA
140See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.
1428 U.S.C. § 1430. 1438 U.S.C.§ 1186b(2)(A). 144See 5 U.S.C. § 6382.
36
Add. 78

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 37 of 39
dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
It strains credulity to suggest that Congress might have created such a sweeping statusbased enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].”146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,”147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context
145See Heller, 509 U.S. at 319-20 (internal citations omitted). 146Id. at 321. 147Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).
37
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Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 38 of 39
from which [this court] could discern a relationship to legitimate [government] interests.”148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff
148Romer, 517 U.S. at 635. 149Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).
38
Add. 80

Case 1:09-cv-10309-JLT Document 70 Filed 07/08/10 Page 39 of 39 Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro United States District Judge
39
Add. 81

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

NANCY GILL & MARCELLE LETOURNEAU, )

et al.

)

Plaintiffs,

)

)

v.

)

)

)

OFFICE OF PERSONNEL MANAGEMENT, et al.
Defendants.

) ) )

No. 1:09-cv-l 0309 JLT

~ AMENDED JUDGMENT

This action came on for a hearing before the Court on the Defendants' Motion to Dismiss

[#20] and Plaintiffs' Motion for Summary Judgment [#25], and the issues having been duly

heard and a Memorandum having been issued on July 8, 2010,

It is ORDERED AND ADJUDGED:

The Plaintiffs' Motion for Summary Judgment is ALLOWED and:

(1) The rights of the Plaintiffs are declared as follows:

(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 ("DOMA"), is

unconstitutional as applied to the Plaintiffs by the Defendants in the administration and

application of (1) the Federal Employees Health Benefits Program ("FEHB"), (2) the

Federal Employees Dental and Vision Insurance Program ("FEDVIP"), (3) the United

States Postal Service Health Care Flexible Spending Account program ("Postal Service

Health Care FSA"), (4) certain retirement and survivor benefit provisions of the Social

Security Act, as set forth below, and (5) the Internal Revenue Code.

Add. 82

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 2 of 6
(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse, Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 ofDOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 ofDOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
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Add. 83

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 3 of 6
(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management ("OPM") is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 ofDOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from "self only" to "self and family" so as to provide coverage for his spouse, Plaintiff James Fitzgerald;
(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit PlaintiffNancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael 1. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
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Add. 84

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 4 of 6
(b) to review the Plaintiff Jo Ann Whitehead's application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, withoUtt regard to Section 3 ofDOMA;
(c) to review the Plaintiff Randell Lewis-Kendell's application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of OOMA; and
(d) to review the Plaintiff Herb Burtis's application for the Social Security Lump-Sum Death Benefit and for the Widower's Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, thl! following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054. (b) For the taxable year ending December 31, 2005: $2,703. (c) For the taxable year ending December 31, 2006: $4,390. (d) For the taxable year ending December 31, 2007: $6,371. (e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII ofthe Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
·4·
Add. 85

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 5 of 6
(a) For the taxable year ending December 31, 2004: $4,687. (b) For the taxable year ending December 31,2005: $3,785. (c) For the taxable year ending December 31, 2006: $5,546. (d) For the taxable year ending December 31,2007: $5,697. (e) For the taxable year ending December 31,2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America: (a) For the taxable year ending December 31,2006: $1,286. (b) For the taxable year ending December 31, 2007: $1,234. (c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate prov ided by Section 6621 of the Internal Revenue Code (26 U.S.c.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Dc~fendants' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely on the Plaintiff Dean Hara's claim for enrollment in the FEHB Program as a matter of standing.
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Add. 86

Case 1:09-cv-10309-JLT Document 74 Filed 08/17/10 Page 6 of 6

JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties' concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12,2010 [#71].

ENTERED:

L. Tauro
States District Judge

- 6-
Add. 87

STATUTORY ADDENDUM
Pub. L. No. 104-199, 110 Stat 2419 (1996):
SECTION 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES. << 28 USCA § 1738C >>
(a) IN GENERAL.--Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"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.".
* * * *
SEC. 3. DEFINITION OF MARRIAGE. << 1 USCA § 7 >>
(a) IN GENERAL.--Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
* * * *
Add. 88

 
 United States Court of Appeals
For the First Circuit
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Defendants, Appellants. ________________________
Nos. 10-2207 & 10-2214 DEAN HARA,
Plaintiff, Appellee/Cross-Appellant, NANCY GILL, ET AL.,
Plaintiffs, Appellees, KEITH TONEY, ET AL., Plaintiffs, v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Defendants, Appellants/Cross-Appellees,
HILARY RODHAM CLINTON, in her official capacity as United States Secretary of State,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges.

Paul D. Clement with whom H. Christopher Bartolomucci, Conor

B. Dugan, Nicholas J. Nelson , Bancroft PLLC , Kerry W. Kircher ,

General Counsel, Office of General Counsel, U.S. House of

Representatives, Christine Davenport, Sr. , Assistant Counsel,

Katherine E. McCarron , Assistant Counsel, William Pittard ,

Assistant Counsel, and Kirsten W. Konar, Assistant Counsel, were on

brief for intervenor-appellant, the Bipartisan Legal Advisory Group

of the U.S. House of Representatives.

Stuart F. Delery , Acting Assistant Attorney General, Civil

Division, Department of Justice, with whom Tony West , Assistant

Attorney General, Carmen M. Ortiz, United States Attorney, Robert

E. Kopp, Michael Jay Singer , August E. Flentje and Benjamin S.

Kingsley, Appellate Staff, Civil Division, Department of Justice,

were on brief for the federal defendants.

Anthony R. Picarello, Jr. , Jeffrey Hunter Moon , Michael F.

Moses, U.S. Conference of Catholic Bishops, Von G. Keetch

,

Alexander Dushku, R. Shawn Gunnarson, Kirton & McConkie and Carl H.

Esbeck, Legal Counsel, Office of Governmental Affairs, National

Association of Evangelicals, on brief for U.S. Conference of

Catholic Bishops; National Association of Evangelicals; The Church

of Jesus Christ of Latter-day Saints; The Ethics and Religious

Liberty Commission of the Southern Baptist Convention; The Lutheran

Church-Missouri Synod; The Union of Orthodox Jewish Congregations

of America; The Massachusetts Catholic Conference; The Brethren in

Christ Church; The Christian and Missionary Alliance; The

Conservative Congregational Christian Conference; The Evangelical

Free Church of America; The Evangelical Presbyterian Church; The

International Church of the Foursquare Gospel; The International

Pentecostal Holiness Church; The Missionary Church; Open Bible

Churches [USA]; The United Brethren in Christ Church; The Wesleyan

Church, Amici Curiae.

John Anthony Simmons, Sr. and David Ramos on brief for

American College of Pediatricians, Amicus Curiae.

Lawrence J. Joseph on brief for Eagle Forum Education & Legal

Defense Fund, Amicus Curiae.

Paul Benjamin Linton, Special Counsel, Thomas More Society,

Thomas Brejcha, President & Chief Counsel, Thomas More Society, and

Christopher M. Gacek , Family Research C ouncil, on brief for the

Family Research Council, Amicus Curiae.

Kristen K. Waggoner and Ellis, Li & McKinstry PLLC on brief

for Robert P. George, Sherif Girfis, and Ryan T. Anderson, Amici

Curiae.

-2-

David Austin R. Nimocks, Brian W. Raum, Dale Schowengerdt and Holly L. Carmichael , Alliance Defense Fund, on brief for Representative Lamar Smith, Amicus Curiae.
Mary E. McAlister, Stephen M. Crampton, Rena M. Lindevaldsen, Mathew D. Staver and Anita L. Staver, Liberty Counsel, on brief for Liberty Counsel, Amicus Curiae.
Thomas M. Fisher , Solicitor General, Office of the Indiana Attorney General, Gregory F. Zoeller, Attorney General, Office of the Indiana Attorney General, Bill Schuette , Attorney General, State of Michigan, Mark L. Shurtleff , Attorney General, State of Utah, John W. Suthers , Attorney General, State of Colorado, and Alan Wilson, Attorney General, State of South Carolina, on brief for the States of Indiana, Colorado, Michigan, South Carolina, and Utah, Amici Curiae.
John A. Eidsmoe , Roy S. Moore and Benjamin D. DuPré , Foundation for Moral Law, on brief for Foundation for Moral Law, Amicus Curiae.
George I. Goverman on brief pro se, Amicus Curiae. Russell D. Raskin, Raskin & Berman, Abba Cohen and Mordechai Biser, Agudath Israel of America, on brief for Agudath Israel of America, Amicus Curiae. William C. Duncan , Marriage Law Foundation, and Joshua K. Baker, National Organization for Marriage, on brief for National Organization for Marriage, Amicus Curiae. Steven W. Fitschen and Douglas E. Myers on brief for the National Legal Foundation, Amicus Curiae. Stephen C. Whiting and The Whiting Law Firm on brief for Massachusetts Family Institute, Amicus Curiae. Kevin T. Snider , Pacific Justice Institute, on brief for Pacific Justice Institute, Amicus Curiae. Eric C. Bohnet on brief for Concerned Women for America, Amicus Curiae. Gary G. Kreep on brief for National Association for Research & Therapy of Homosexuality (NARTH), Amicus Curiae. Mary L. Bonauto with whom Gary D. Buseck , Vickie L. Henry , Janson Wu, Gay & Lesbian Advocates & Defenders, Paul M. Smit,h Luke C. Platzer, Matthew J. Dunne, Melissa A. Cox, Jenner & Block LLP, Claire Laporte, Ara B. Gershengorn, Matthew E. Miller, Amy Senier, Catherine Deneke, Foley Hoag LLP, David J. Nagle, Richard L. Jones, and Sullivan & Worcester LLP were on brief for plaintiffs, appellees Nancy Gill, et al., and plaintiff, appellee, crossappellant Dean Hara. Maura T. Healey, Assistant Attorney General, with whom Martha Coakley, Attorney General, Jonathan B. Miller, Assistant Attorney General, Christopher K. Barry-Smith , Assistant Attorney General, Mark C. Fleming, Felicia H. Ellsworth, Brian J. Boyle Jr., Alan E. Schoenfeld and Wilmer Cutler Pickering Hale and Dorr LLP were on brief for plaintiff, appellee Commonwealth of Massachusetts.
-3-

William F. Sheehan , Goodwin Procter LLP and Nathalie F.P.

Gilfoyle, American Psychological Association, on brief for the

American Psychological Association, the Massachusetts Psychological

Association, the American Psychiatric Association, the National

Association of Social Workers and its Massachusetts Chapter, the

American Medical Association, and the American Academy of

Pediatrics, Amici Curiae.

Clifford H. Ruprecht, Catherine R. Connors , Frank H. Bishop

and Pierce Atwood LLP on brief for historians Peter W. Bardaglio,

Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby

L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman,

Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen

Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine

Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary

L. Shanley, Amy Dru Stanley and Barbara Young Welke, Amici Curiae.

Patricia A. Peard, Ronald W. Schneider, Jr. , Bernstein Shur

and Katharine K. Baker, Professor of Law, Chicago-Kent College of

Law, on brief for Family Law Professors, Amici Curiae.

William L. Chapman, Emily Gray Rice , Orr & Reno, P.A. , Joan

Heifetz Hollinger, Lecturer-in-Residence, Child Advocacy Program,

University of CA, Berkeley School of Law, Courtney Joslin, Acting

Professor, UC Davis School of Law, and Katharine Silbaugh

,

Professor of Law and Law Alumni Scholar, on brief for Family and

Child Welfare Law Professors, Amici Curiae.

Robert G. Young, Daryl J. Lapp , Edwards Wildman Palmer LLP ,

James D. Esseks, Joshua A. Block , American Civil Liberties Union

Foundation, Shannon Minter, Christopher F. Stoll, National Center

for Lesbian Rights, Jon W. Davidson, and Peter Renn, Lambda Legal,

on brief for 31 Bar Associations, Public-Interest Organizations and

Legal Service Organizations, Amici Curiae.

Mirian R. Nemetz, Kathleen Connery Dawe, Michael B. Kimberly,

Mayer Brown LLP, and Heather C. Sawyer, Minority Counsel, Committee

on the Judiciary, Ranking Members John Conyers, Jr. and Jerrold

Nadler, on brief for Members of the U.S. House of Representatives-

Including Objecting Members of the Bipartisan Legal Advisory Group,

Representatives Nancy Pelosi and Steny H. Hoyer, Amici Curiae.

Alan B. Morrison , George Washington Law School, Anne L.

Weismann, Melanie Sloan, Citizens for Responsibility and Ethics in

Washington, on brief for Citizens for Responsibility and Ethics in

Washington, Amicus Curiae.

Sabin Willett, Beth I.Z. Boland and Bingham McCutchen LLP on

brief for 70 Business, Professional and Municipal Employers, and

Professional, Trade, and Civic Organizations Representing

Employers, Amici Curiae.

Jacob C. Cohn, Jeffrey I. Pasek and Cozen O'Connor on brief

for the Jewish Social Policy Action Network, Amicus Curiae.

James L. Linsey , Cohen, Weiss and Simon LLP , National

Association of Letter Carriers, Judith A. Scott, General Counsel,

-4-

Nicole G. Berner , Associate General Counsel, Laurel R. Webb , Assistant General Counsel, Service Employees International Union, David Borer, General Counsel, Leisha A. Self , Staff Counsel, American Federation of Government Employees, John C. Dempsey , General Counsel, American Federation of State, County and Municipal Employeees, David Strom, General Counsel, American Federation of Teachers, Thomas R. Carpenter, General Counsel, American Federation of Television and Radio Artists, Edward J. Gilmartin , General Counsel, Association of Flight Attendants, Alan S. Gordon, General Counsel, Deborah Allton-Maher, Eastern Counsel, American Guild of Musical Artists, Patrick J. Szymanski, General Counsel, Change to Win, Mary K. O'Melveny, General Counsel, Communications Workers of America, National Education Association, Duncan Crabtree-Ireland, General Counsel, Danielle S. Van Lier, Assistant General Counsel, Screen Actors Guild, David Rosen , General Counsel, Transport Workers Union of America, Michael Nicholson, General Counsel, International Union, UAW, Nick Clark, General Counsel, United Food and Commercial Workers International Union, American Federation of Musicians, Clinton J. Miller III, General Counsel, Erika A. Diehl, Assistant General Counsel, United Transportation Union, Richard J. Brean, General Counsel, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, and Bradley T. Raymond , General Counsel, International Brotherhood of Teamsters, on brief for Labor Organizations, Amici Curiae.
Harvey J. Wolkoff , Jessica M. Lindemann , Russell P. Plato , Samuel P. Bickett, Ropes & Gray LLP, Robert O. Trestan, Steven C. Sheinberg, Steven M. Freeman , Deborah Bensinger , Anti-Defamation League, on brief for Anti -Defamation League, Andover Newton Theological School, California Council of Churches, California Faith for Equality, Central Conference of American Rabbis, General Synod of the United Church of Christ, Hadassah, the Women's Zionist Organization of America, Hindu American Foundation, Interfaith Alliance Foundation, Japanese American Citizens League, Jewish Alliance for Law & Social Action, Jewish Reconstructionist Federation, MA Conference of the United Church of Christ, National Council of Jewish Women, People for the American Way Foundation, Society for Humanistic Judaism, Union for Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Legislative Ministry California, the Unitarian Universalist Ministers Association, the Universal Fellowship of Metropolitan Community Churches, and Women of Reform Judaism, Amici Curiae.
May 31, 2012
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BOUDIN, Circuit Judge . These appeals present
constitutional challenges to section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to samesex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23--which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)--the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision; 1 many more states responded by banning same-sex marriage by statute or constitutional amendment.2
1E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
2E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May
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Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must--having only two operative paragraphs--be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for purposes of federal law:
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. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves
13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).
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federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,0003. Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM , No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal f unding for programs tied to DOMA's opposite-sex marriage definition--such as Massachusetts' state Medicaid program and veterans' cemeteries.

3U.S. Census Bureau, Census Bureau Releases Estimates of

Same-Sex

Married

Couples

(Sept.

27,

2011),

http://www.census.gov/newsroom/releases/archives/2010_census/cb11

-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or

Spouse Households by Sex of Householder by Presence of Own

Children: 2010 Census and 2010 American Community Survey

,

http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last

visited May 22, 2012).

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By combining the income of individuals in same-sex marriages, Massachusetts' Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal "veterans' cemetery" status and gives the Department of Veterans' Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gillv. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth's argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court's judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification--discussed separately below-the federal defendants have throughout focused solely upon the district court's premise that DOMA is unconstitutional.
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The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a "heightened scrutiny" standard and that DOMA failed under that standard. It opposed the sepa rate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department's about face while defense of the statute passed to a group of Republican leaders of the House of Representatives--the Bipartisan Legal Advisory Group ("the Legal Group")--who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and "legislative facts" bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common
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knowledge. Daggett v. Comm'n on Governm ental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state's refusal to recognize same-sex marriage violated
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federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicksv. Miranda, 422 U.S. 332, 344 (1975). Following Baker , "gay rights" claims prevailed in several well k nown decisions, Lawrence v. Texas , 539 U.S. 558 (2003), and Romer v. Evans , 517 U.S.620 (1996), 4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal "prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
4Lawrence struck down Texas' statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrencerested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny--applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.
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Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving "suspect" classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications--race, alienage and national origin--require what the Court calls strict scrutiny, which entails both a compelling governmental interest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the "last resort of constitutional argument," Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual
5United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan , 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).
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basis, Williamson v. Lee Optical of Oklahoma, Inc. , 348 U.S. 483, 487-88 (1955), without regard to Congress' actual motives. Beach Commc'ns, 508 U.S. at 314. Means need not be narrowly drawn to meet--or even be entirely consistent with--the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gillplaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the socalled intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined
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to create a major new category of "suspect classification" for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded "Don't Ask, Don't Tell" policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications--in particular, by implying an overruling of Bake,r which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Rome-r-a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.
However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
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In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions--not classic rational basis review--that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation's fit--finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a "bare congressional desire to harm a politically unpopular group." Id. at 534, 537-38.
The second, City of Cleburnev. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as applied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental
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disability too had no connection to alleged concerns about population density. All that remained were "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding." Id. at 448.
Finally, in Romer v. Evans , 517 U.S. 620 (1996), the Court struck down a provision in Colorado's constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling "unprecedented" the "disqualification of a class of persons from the right to seek specific protection from the law," deemed the provision a "status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this--both favorably, City of Cleburn,e 473 U.S. at 45155 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the
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circumstances of the case and not dependent entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential "rational basis" test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination.
United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi,
J., concurring) (citing City of Cleburne as an example). There is
nothing remarkable about this: categories are often approximations
and are themselves constructed by weighing of underlying elements.
All three of the cited cases--Moreno , City of Cleburne
and Romer--stressed the historic patterns of disadvantage suffered
by the group adversely affected by the statute. As with the women,
the poor and the mentally impaired, gays and lesbians have long been
the subject of discrimination. Lawrence , 539 U.S. at 571. The
Court has in these cases undertaken a more careful assessment of the
justifications than the light scrutiny offered by conventional
rational basis review.
As for burden, the combined effect of DOMA's restrictions
on federal benefits will not prevent same-sex marriage where
permitted under state law; but it will penalize those couples by
limiting tax and social security benefits to opposite-sex couples
6E.g., Ramos v. Town of Vernon , 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denie,d 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).
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in their own and all other states. For those married same-sex

couples of which one partner is in federal service, the other cannot

take advantage of medical care and other benefits available to

opposite-sex partners in Massachusetts and everywhere else in the

country.

These burdens are comparable to those the Court found

substantial in Moreno, City of Cleburne, and Romer. Moreno, like

this case, involved meaningful economic benefits; City of Cleburne

involved the opportunity to secure housing; Romer, the chance to

secure equal protection of the laws on the same terms as other

groups. Loss of survivor's social security, spouse-based medical

care and tax benefits are major detriments on any reckoning;

provision for retirement and medical care are, in practice, the main

components of the social safety net for vast numbers of Americans.

Accordingly, we conclude that the extreme deference

accorded to ordinary economic legislation in cases like Lee Optical

would not be extended to DOMA by the Supreme Court; and without

insisting on "compelling" or "important" justifications or "narrow

tailoring," the Court would scrutinize with care the purported bases

for the legislation. Before pr oviding such scrutiny, a separate

element absent in Moreno

, City of Cleburne

, and

Romer--federalism--must be considered.

Federalism. In assailing DOMA, the plaintiffs and

especially the Commonwealth rely directly on limitations attributed

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to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations--such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)--Congress has provided its own definitions limited to the particular program or personnel involved. But no
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precedent exists for DOMA's sweeping general "federal" definition of marriage for all federal statutes and programs.
Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States , 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the "germaneness" requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole , 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole , the
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Supreme Court upheld a condition by which federal funds for highway construction depended on a state's adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans' cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez , 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin
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Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7
cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA
a "considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and
welfare of their citizens").
True, these federalism cases examined the reach of
federal power under the Commerce Clause and other sources of
constitutional authority not invoked here; but a statute that
violates equal protection is likewise beyond the power of Congress.
See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that
DOMA intrudes broadly into an area of traditional state regulation,
a closer examination of the justifications that would prevent DOMA
from violating equal protection (and thus from exceeding federal
authority) is uniquely reinforced by federalism concerns.
DOMA's Rationales. Despite its ramifying application
throughout the U.S. Code, only one day of hearings was held on DOMA,
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm.
7The majority, focusing on the related issue of fit, said that "a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating "because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination." Id. at 2520 (Thomas, J., concurring in part and dissenting in part).
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on the Constitution of the H. Comm. on the Judiciary, 104th Cong.
(1996) ("Hearing"), and none of the testimony concerned DOMA's
effects on the numerous federal programs at issue. Some of the
odder consequences of DOMA testify to the speed with which it was
adopted.8
The statute, only a few paragraphs in length, is devoid
of the express prefatory findings commonly made in major federal
laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400;
21 U.S.C. § 801; 29 U.S.C. § 151; id. § 1001; 42 U.S.C. § 7401.
Accordingly, in discerning and assessing Congress' basis for DOMA
our main resort is the House Committee report and, in lesser
measure, to variations of its themes advanced in the briefs before
us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.
8For example, DOMA's definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on anti-nepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.
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H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to
section 3--indeed, is antithetical to it--but was concerned solely with section 2, which reserved a state's power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality.
First, starting with the most concrete of the cited reasons--"preserving scarce government resources"--it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe , 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal

9Cong. Budget Office, The Potential Budgetary Impact of

Recognizing Same-Sex Marriages

(2004), available at

http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5

559/06-21-samesexmarriage.pdf.

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protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co. , 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group's brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem,
10The House Report refers obliquely to the importance of heterosexual marriage in "encouraging responsible procreation and child-rearing," H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that "heterosexual marriage provides the ideal structure within which to beget and raise children." Hearing, supra , at 1 (opening statement of Rep. Canady).
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Lee Optical, 348 U.S. at 487-88; City of Cleburne , 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA's stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality "morally wrong"). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrenceruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Finally, it has been suggested by the Legal Group's brief that, faced with a prospective change in state marriage laws, Congress was entitled to "freeze" the situation and reflect. But
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the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report's own arguments--moral, prudential and fiscal--make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court's decision in Baehr , that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id.at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.
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Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia , 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of mo tives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as "mere moral disapproval of an excluded group," Lawrence , 539 U.S. at 585 (O'Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on
-29-

belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara's Health Benefits Claim . A distinct, if much narrower, issue is raised by Dean Hara, one of the Gillplaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a
-30-

further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt. , No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).
Hara was married under Massachusetts law to a nowdeceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman's Federal Employees' Health Benefit Plan ("FEHBP"). For this, (1) Hara would have to be an eligible "annuitant" under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for "self and family," which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management ("OPM") had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board ("MSPB" or "Board") and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the
-31-

DOMA issue in this circuit. Hara , No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now--as at the time the district court issued its judgment--a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara's claim for FEHBP health enrollment because of the Congressman's failure to elect "self and family" coverage. Although the district court found DOMA unconstitutional, it refused to resolve Hara's health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed , maintaining the district
-32-

court's stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.
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ADDENDUM
SECTION. 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the effect thereof
"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.".
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
"1738C. Certain acts, records, and proceedings and the effect thereof.".
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".
-34-

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: "7. Definition of 'marriage' and 'spouse'."
-35-

 
 No.
In The
~upreme QCourt of tbe Wlniteb ~tates

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES ,
Petitioner, v.
NANCY GILL, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

KERRY W. KlRCHER

PAULD. CLEMENT

General Counsel

Couns el of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel CONOR B . DUGAN

CHRISTINE DAVENPORT NICHOLAS J. NELSON

Senior Assistant Counsel BANCROFT PLLC

TODD B . TATELMAN

1919 M Street, N.W.

MARY BETH WALKER

Suite 470

Assistant Counsels

Washington, D.C. 20036

OFFICE OF GENERAL COUNSEL (202) 234-0090

U .S. HOUSE OF

pcleme nt@bancroftpllc.com

REPRESENTATIVES

219 Cannon House Offire Bldg.

Washington, D .C. 20515

(202) 225-9700

Counsel for Petitioner

QUESTIONS PRESENTED
Section 3 of the Defense of Marriage Act provides that for purposes of federal law "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife." 1 U.S.C. § 7.
The court of appeals held that Section 3 violates equal protection. It recognized that Section 3 is not subject to either "heightened" or "intermediate" scrutiny and that Section 3 passes "conventional" rational basis review. But it struck down Section 3 nonetheless ba$ed on a new form of review (which it viewed as outcome determinative) said to entail "intensified scrutiny," "closer than usual review," and "diminish[ed]" deference to Congress. The court based its new standard of review on a fusion of "equal protection and federalism concerns."
The questions presented are:
(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and
(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.

11
PARTIES TO THE PROCEEDING
The Bipartisan Legal Advisory Group of the U.S. House of Representatives was the ·IntervenorAppellant in the court below.
The U.S. Department of Health and Human Services, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, the U.S. Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as Secretary of the U .S. Department of Veterans Affairs, and the United States of America were Appellants in the court below.
The Office of Personnel Management, the U.S. Postal Service, Patrick R. Donahoe, in his official capacity as Postmaster General ofthe United States, Michael J. Astrue, in his official capacity as Commissioner of the Social Security Administration, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, and the United States of America were Appellants/CrossAppellees in the court below.
Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Dorene Bowe-Shulman, Mary Bowe-Shulman, and the Commonwealth of Massachusetts were Appellees in the court below.
Dean Hara was an Appellee/Cross-Appellant in the court below.

111
TABLE OF CONTENTS QUESTIONS PRESENTED .. ........ ......................... .... i PARTIES TO THE PROCEEDING ........................... ii TABLE OF AUTHORITIES ................ .............. ....... vi PETITION FOR A WRIT OF CERTIORARI ............ 1 OPINIONS BELOW.. ... ... ..... .. .... ......... ....................... 1 JURISDICTION .................... ............... .... .................. 2 CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .. ... ..... .. ..... ... .... .... ..... 2 STATEMENT OF THE CASE ......... ... .. .. .. ......... ........ 2
A. The Defense of Marriage Act .... .. .... ..... ...... .. 2 B. The District Court's Decisions in
Gill and Massachusetts ...... ... ..... .... ...... ...... 11 C. The Justice Department's About-
Face .............. ....................... ... ... ................. 12 D. The First Circuit's Decision ......... .............. 13 REASONS FOR GRANTING THE WRIT............... 16 I. The Constitutionality of Section 3 of DOMA Is an Issue of Great National Importance and Separation-of-Powers Considerations Strongly Counsel in Favor of Prompt Review ...... ....... ........ ........ .. .... 17 II. The Decision Below Conflicts With This Court's Decision in Baker v. Nelson and With the Decisions of Other Courts of Appeals. ............ .. .......... ............. ........... ......... .... 22 III. The Court of Appeals Invented a New Standard of Equal Protection Review ........ .... .. 28 CONCLUSION .......... ..... ...... ............. ....................... 35

lV
APPENDICES
Appendix A
Opinion of the United States Court of Appeals for the First Circuit, Nos. 10-2204, 10-2207, & 10-2214 (May 31, 2012) .................... .... .................... 1a
Appendix B
Judgment of the United States Court of Appeals for the First Circuit, Nos. 10-2204, 10-2207, & 10-2214, (May 31, 2012) ...................................... .... . 30a
Appendix C
Opinion of the United States District Court for the District of Massachusetts, Gill u. Office of Personnel Management, No. 09-10309 (July 8, 2010) ............................................. 32a
Appendix D
Opinion of the United States District Court for the District of Massachusetts, Commonwealth of Massachusetts v. United States Department of Health and Human Services, No. 09-11156 (July 8, 2010) ............................................. 78a

v
Appendix E
Letter from Eric H. Holder, Jr., Attorney General, to the Honorable John A. Boehner, Speaker of the U.S. House of Representatives (Feb. 23, 2011) .......................................... 119a
Appendix F
Letter from Tony West, Assistant Attorney General, to Margaret Carter, Clerk of the United States Court of Appeals for the First Circuit (Feb . 24, 2011) .......................................... 130a

Vl
TABLE OF AUTHORITIES Page(s)
Cases
Adams v. Howerton, 486 F. Supp. 1119 (C.D . Cal. 1980), aff'd, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) .......................... 4
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) ............ 25, 26, 28
Adarand Constructors, Inc. v. Peiia, 515 U.S. 200 (1995) ........................ .. ..................... 32
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ........ .... ............................. 4
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ......................... 22, 23
Baker v. Nelson, 409 U.S. 810 (1972) ............................ .. ..... 13, 22, 23
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ................... 21
Braxton v. United States, 500 U.S. 344 (1991) ............................................... 24
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ........................... 27, 28
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................... 14, 30, 31
Clark v. Jeter, 486 U.S. 456 (1988) .................... ........ .... ............... 30

Vll
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009) ...... ........ ........ 13, 27
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) .......... .......... ............. 26
Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................ 4
FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993) ............................................... 18
Golinski v. U.S. Office of Pers. Mgmt., 824 F . Supp. 2d 968 (N.D. Cal. 2012) ................... 20
Gonzales v. Raich, 545 U.S. 1 (2005) ................................................ .. . 18
Heller v. Doe, 509 U .S. 312 (1993) ............................................... 30
Hicks v. Miranda, 422 U .S. 332 (1975) .. .... .. ....................................... 23
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ................................. 27
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ................................. 27
In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) .. .... .. 10, 20
Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005) ........................ 27
Mandel v. Bradley, 432 U.S. 173 (1977) ............ .. .... ...... .. ........ ...... .... ... 24

Vlll
McConnell v. Nooner , 547 F.2d 54 (8th Cir. 1976) ................ .. .... ........... .. 26
Murphy v. Ramsey, 114 U.S. 15 (1885) ................................................... 7
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) .......... ...... ......... .... ...... 27
New York v. United States, 505 U.S. 144 (1992) ........... .......... ....... .. ....... .......... 32
Nw. Austin Mun. Util. Dist. No. One v. Holder , 557 U.S . 193 (2009) ....... ........ ....... ................... 18, 33
Padula v. Webster, 822 F.3d 97 (D.C. Cir. 1987) ......... ...................... .. 27
Price-Cornelison v. Brooks, 524 F.3d 1103 (lOth Cir. 2008) ..... .............. .. ........ 27
Printz v. United States, 521 U.S. 898 (1997) ............ ....... ....... ..................... 32
Regan v. Time, Inc., 468 U.S. 641 (1984) ............... ....... ... ...... .. .. .. .. .. ... ... 19
Reno v. Condon, 528 U.S. 141 (2000) ................ ....... ... .. ... ...... .. .. ...... 18
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) ..................... .......... .. ... .... ..... .. 34
Romer v. Evans, 517 U.S. 620 (1996) ..................... .. ......... ......... 14, 30
Rostker v. Goldberg, 453 U .S. 57 (1981) ...... ........... ...... ... ... ...................... 9

IX
Smelt v. Cnty. of Orange, 374 F . Supp . 2d 861 (C.D. Cal. 2005), aff'd in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006) ........... 10, 20
South Dakota v. Dole, 483 U.S . 203 (1987) .............. .. ...................... .... .... . 32
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) (en bane) .... .. .. .. .... ... 27
Tenet v. Doe, 544 U.S. 1 (2005) ................................ .. ................. 33
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), cert. denied, 519 U.S. 948 (1996) ...... .... ................ 27
U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) .......................... ......... 14, 30, 31
United States v. Bajakajian, 524 U.S. 321 (1998) ........................ .. ..................... 18
United States v. Edge Broad. Co., 509 U.S. 418 (1993) .. ........................ .. .. .... ............. 18
United States v. Five Gambling Devices, 346 U.S. 441 (1953) ................................................. 9
United States v. Lopez , 514 U.S. 549 (1995) .. .... .. .. .. .... .. .... ........ .. ...... .... ..... 33
United States v. Morrison, 529 U.S. 598 (2000) .. .......... .... .. .. .... .......... ....... 18, 33
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ........... 10, 20
Windsor v. United States, 833 F. Supp. 2d 394 (S .D.N.Y. 2012) ...... .............. 20
Witt v. Dep 't of Air Force, 527 F .3d 806 (9th Cir. 2008) .......... .. .. .. .. ...... .... ..... 27

X
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ........................ 27
Constitutional Provisions U.S. Canst. art. II, § 3 .............. .... .......................... .. .. 9 U.S. Const. Amend. V ................ ................................ 2 Neb. Const. art. I, § 29 ...... .. .. .................... .. ............. 28 Statutes 1 U .S.C. § 7 ................................ .... ................ .. ........... 2 26 U .S .C. § 6013(a) .......................... .... ................ .. ..... 3 28 U.S.C. § 1254(1).............. ...... .................. .. .. .. ......... 2 28 U.S.C. § 1257(2).......... ...................... .. ................. 23 28 U.S.C. § 1291 .. .. ............................................ .. ....... 2 28 U.S.C. § 1738C ...................... .. .................... .. ........ 3 Revenue Act of 1921, § 223(b),
42 Stat. 227 .. .. ........... .. ....................... ...................... 3 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101 ................... 4 Rules & Regulation Rule I.11, Rules ofthe House of Representatives, 103rd Cong. (1993) ...................... 1 Rule II .8, Rules of the House of Representatives, 112th Cong. (2011) ...................... 1 U .S . Dep't of Labor, Final Rule , Family Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2190-91 (Jan. 6, 1995) ...... .. .................. .. .... .. . 4

Xl
Other Authorities 142 Cong. Rec. 16796 (1996) (Rep. Mcinnis) ............ 7 142 Cong. Rec. 16969 (1996) (Rep. Canady) .. ........... 6 142 Cong. Rec. 16970 (1996)
(Rep. Hutchinson) .. ........... ..... .. ............................ ... . 7 142 Cong. Rec. 17072 (1996)
(Rep. Sensenbrenner) ............ .. ...... .............. ......... ... 6 142 Cong. Rec. 17081 (1996) (Rep. Weldon) .... ....... .. . 8 142 Cong. Rec. 17093 (1996) ............................ ....... .. . 2 142 Cong. Rec. 22262 (1996)
(Sen. Lieberman) .. ... ... .. .. ......... .... .... ............ ... .... .. ... 8 142 Cong. Rec. 22442 (1996) (Sen. Gramm) .............. 7 142 Cong. Rec. 22446 (1996) (Sen. Byrd) ............... .. . 8 142 Cong. Rec. 22451 (1996) (Sen. Coats) ................. 8 142 Cong. Rec. 22452 (1996) (Sen. Mikulski) ........... 8 142 Cong. Rec. 22454 (1996) (Sen. Burns) ........... ... .. 7 142 Cong. Rec. 22459 (1996) (Sen. Ashcroft) ............ 6 142 Cong. Rec. 22467 (1996) .......... ..... ..... ........ ..... .. ... 2 Corrected Br. for U.S. Dep't of HHS, et al.,
Massachusetts v. U.S. Dep 't of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 20, 2011) .......................................... 12 Council on Families in America, Marriage in America: A Rep.ort to the Nation (1995) ......... .... .. ;.. 7 Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) .......... .......... 6, 7, 8, 9

Xll
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................................................. 9
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ........ .. ..passim
Jurisdictional Statement, Baker v. Nelson, No. 71-1027 (S.Ct. Feb . 10, 1972) .... .. ........ .. .. ...... . 23
Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996) ................................... 9
Letter from Andrew Fois, Asst. Att'y Gen., to Rep. Hyde (May 14, 1996) .... ........ .... .. ..................... 9
Letter from Andrew Fois, Asst. Att'y Gen., to Sen. Hatch (July 9, 1996) ................ .. .... .. ................ 9
U.S. Gen. Accounting Office, GA0-04-353R, Defense of Marriage Act (2004) ...... .. .... .. ............... 19

PETITION FOR A WRIT OF CERTIORARI
The Bipartisan Legal Advisory Group of the United States House of Representatives ("the House") respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. 1
OPINIONS BELOW
The opmwn of the First Circuit has not yet been published in the Federal Reporter, but is available at 2012 WL 1948017 and reproduced in the appendix hereto ("App.") at App. 1a. The opinions of the district court are reported at 699 F. Supp . 2d 374 and 698 F. Supp. 2d 234, and reproduced at App. 32a
1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980's (although the formulation of the group's name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. S ee, e.g., Rule 1.11, Rules of the House of Representatives, 103rd Cong. (1993) ; Rule II .8, Rules of the House of Representatives, 112th Cong. (2011) . While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3's constitutionality in this and other cases.

2
and App. 78a.
JURISDICTION
The First Circuit had jurisdiction pursuant to 28 U.S.C. § 1291. The jurisdiction of this Court 1s invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Due Process Clause of the Fifth Amendment
provides: "No person shall * * * be deprived of life,
liberty, or property, without due process of law." U.S. Const. Amend. V.
Section 3 of the Defense of Marriage Act, 1 U.S. C. § 7 ("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 .
STATEMENT OF THE CASE
A. The Defense of Marriage Act
The Defense of Marriage Act of 1996 "was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton." App. 3a. The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate). In enacting DOMA, Congress acted to ensure that every sovereign-including each state

3
and the federal government-could make its own determination about same-sex marriage.
To that end, Section 2 of the Defense of Marriage Act, which plaintiffs do not challenge here, provides that no state is required to give effect to another state's recognition of same-sex marriages. See 28 U.S.C. § 1738C; App. 28a (addendum to opmwn below).
Section 3 defines "marriage" as the legal union of one man and one woman and "spouse" as a person of the opposite sex who is a husband or wife. These definitions apply for purposes of federal law only.
DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recogmze same-sex marriage. See App. 4a, 14a (DOMA does not "prevent same-sex marriages where permitted under state law"). Section 3 of DOMA simply asserts the federal government's right as a separate sovereign to provide its own definition which "governs only federal programs and funding ." App. 17a.
Congress, of course, did not invent the meanings of "marriage" and "spouse" in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e., what Congress itself has always meant-and what courts and the executive branch have alway's understood it to mean-in using those words: a traditional male-female couple. See, e.g., Revenue Act of 1921, § 223(b), 42 Stat. 227 (permitting "a husband and wife living together" to file a joint tax return; cf. 26 U.S.C. § 6013(a) ("A husband and wife may make a single return jointly of income taxes")); Veterans and Survivors Pension

4
Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101 ("For the purposes of this title-* * * (31) The term 'spouse' means a person of the opposite sex who is a wife or husband."); U.S. Dep't of Labor, Final Rule, Family Medical Leave Act of 1993, 60 Fed. Reg. 2180, 2190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of "spouse" that would have included "same-sex relationships"); Adams v. Howerton , 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) ("Congress, as a matter of federal law, did not intend that a person of one sex could be a 'spouse' to a person of the same sex for immigration law purposes."), aff'd, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia's marriage statute of 1901, intended "that 'marriage' is limited to opposite-sex couples").
DOMA was enacted in response to the Hawaii Supreme Court's decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which held that the denial of marriage licenses to same-sex couples was subject to strict scrutiny under the state constitution. As the Hawaii courts "appear[ed] to be on the verge of requiring that State to issue marriage licenses to same-sex couples," H.R. Rep. No. 104-664, at 2 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ("House Rep."), Congress was concerned that this could interfere with the ability of other sovereigns-the other 49 states and the federal government-to define marriage in their own way. Section 2 of DOMA therefore employed Congress' power under the Full Faith and Credit Clause to clarify that

5
states need not recognize foreign same-sex marriages. And with Section 3, Congress reaffirmed that, no matter how any state might choose to redefine marriage under state law-whether through legislative change or judicial interpretation of state law-the federal definition of marriage need not follow suit. Instead, Congress provided for a uniform definition that would ensure that the definition for federal law purposes would remain what Congress had always intended: the lawful union of one man and one woman.
In DOMA's extensive legislative history, 2 Congress recognized that past Congresses uniformly used the words "marriage" and "spouse" to refer solely to opposite-sex couples. See House Rep. 10 ("[I]t can be stated with certainty that none of the federal statutes or regulations that use the words 'marriage' or 'spouse' were thought by even a single Member of Congress to refer to same-sex couples."); id. at 30 ("Section 3 merely restates the current
2 The court below stated, incorrectly, that "only one day of hearings was held on DOMA." App. 19a. In fact , there were hearings in both Houses as well as extensive floor debates. A subcommittee of the House Committee on the Judiciary held a hearing on May 15, 1996. See Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ("House Hrg."). It held a mark-up session on May 30. The full Committee held mark-up sessions on June 11 and June 12. The Committee issued its report, H.R. Rep. No. 104-664, on July 9. Floor debate on DOMA and its accompanying rule took place in the House on July 11 and 12. In the Senate, the Senate Judiciary Committee held a hearing on July 11. See Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary , 104th Cong. (1996) ("Senate Hrg.") . Floor debate in the Senate occurred on September 10.

6
understanding of what those terms mean for purposes of federal law."); 142 Cong. Rec. 16969 (1996) (Rep. Canady) ("Section 3 changes nothing; it simply reaffirms existing law."); id. at 17072 (Rep. Sensenbrenner). DOMA thus was intended to ensure that the meaning of federal statutes already on the books, and the legislative judgments of earlier Congresses, would not be altered by changes in state law. See House Hrg. 32 (Rep. Sensenbrenner) ("When all of these benefits were passed by Congress-and some of them decades ago-it was assumed that the benefits would be to the survivors or to the spouses of traditional heterosexual marriages.").
Congress stressed that disagreements among the states regarding which couples can marry should not be permitted to create serious geographical disparities in the applicability of federal mar-ital duties and benefits. As Senator Ashcroft stated, having a federal definition of marriage "is very important, because unless we have a Federal definition of what marriage is, a variety of States around the country could define marriage differently
* * * [and] people in different States would have
different eligibility to receive Federal benefits, which would be inappropriate." 142 Cong. Rec. 22459 (1996). Federal benefits, he observed, "should be uniform for people no matter where they come from in this country. People in one State should not have a higher claim on Federal benefits than people in another State." Id.
Congress also enacted DOMA to conserve the public fisc. "Government currently provides an array of material and other benefits to married

7
couples," and those benefits "impose certain fiscal obligations on the federal government." House Rep. 18. Congress believed that DOMA would "preserve scarce government resources, surely a legitimate government purpose ." Id.
Congress also repeatedly emphasized "'[t]he enormous importance of [traditional] marriage for civilized society."' House Rep. 13 (quoting Council on Families in America, Marriage in America: A Report to the Nation 10 (1995)). The House Report quoted approvingly from this Court's decision in Murphy v. Ramsey, 114 U.S. 15, 45 (1885), in which the Court referred to "the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization." House Rep. 12. See alsa: 142 Cong. Rec. 16970 (1996) (Rep. Hutchinson) (marriage "has been the foundation of every human society"); id. at 22442 (Sen. Gramm) ("There is no moment in recorded history when the traditional family was not recognized and sanctioned by a civilized society-it is the oldest institution that exists."); id. at 22454 (Sen. Burns) ("[M]arriage between one man and one woman is still the single most important social institution."). And Congress recognized that the institution of marriage has traditionally been defined in American law as the union of one man and one woman. See House Rep . 3 ("[T]he uniform and unbroken rule has been that only opposite-sex couples can marry."); House Hrg. 1 (statement of Rep . Canady) ("[l]n the history of our country, marriage has never meant anything else."); 142 Cong. Rec. 16796 (1996) (Rep. Mcinnis) ("If we

8
look at any definition, whether it is Black's Law Dictionary, whether it is Webster's Dictionary, a marriage is defined as [a] union between a man and
a woman * * * and this Congress should respect
that."); id. at 22451 (Sen. Coats) (DOMA "merely restates the understanding of marriage shared by Americans, and by peoples and cultures all over the world"); id. at 22452 (Sen. Mikulski) (DOMA "is about reaffirming the basic American tenet of marriage").
Congress also explained that the reason "society recognizes the institution of marriage and grants married persons preferred legal status" is that it "has a deep and abiding interest in encouraging responsible procreation and child-rearing." House Rep. 12, 13. Congress recognized the basic biological fact that only a man and a woman can beget a child together without external assistance, and sought to encourage children to be raised by both their biological parents. See 142 Cong. Rec. 22446 (1996) (Sen. Byrd); id. at 22262 (Sen. Lieberman) ("I intend to support the Defense of Marriage Act because I think [it] affirms another basic American
mainstream value, * * * marriage as an institution
between a man and a woman, the best institution to raise children in our society."); House Hrg. 1 (Rep. Canady) ("[Marriage] is inherently and necessarily reserved for unions between one man and one woman. This is because our society recognizes that heterosexual marriage provides the ideal structure within which to beget and raise children."); 142 Cong. Rec. 17081 (1996) (Rep. Weldon) ("[M]arriage of a man and woman is the foundation of the family.

9
The marriage relationship provides children with the best environment in which to grow and learn.").
Before enacting DOMA, Congress received and considered advice on its constitutionality and . determined that DOMA is constitutional. See, e.g., House Rep. 33 (DOMA "plainly constitutional"); House Hrg. 87-117 (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA "is a constitutional piece of legislation" and "a legitimate exercise of Congress' power"); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell) . Congress specifically sought constitutional advice from the executive branch, and the Justice Department under the Clinton Administration advised Congress three times that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att'y Gen., to Rep. Canady (May 29, 1996), reprinted in House Rep. 34; to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in Senate Hrg. 2. 3
Discharging the Executive's constitutional duty to "take care that the Laws be faithfully executed," U.S. Const., art. II, § 3, the Justice Department during the Bush Administration successfully defended
3 This Court "does and should accord a strong presumption of constitutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is [constitutional]." United States v. Five Gambling Devices, 346 U .S . 441 , 449 (1953) (plurality) . "The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically considered the question of the Act's constitutionality." Rostker v. Goldberg, 453 U.S. 57, 64 (1981).

10
DOMA against several constitutional challenges, prevailing in every case to reach final judgment. See Wilson v. Ake, 354 F . Supp. 2d 1298 (M.D . Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C .D. Cal. 2005), aff'd in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006); Hunt v. Ake, No. 04-1852 (M.D . Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).
The Department of Justice continued to defend DOMA during the first two years of the current Administration. In February 2011, however, the Attorney General abruptly notified Congress that the Department had decided "to forgo the defense" of DOMA. Letter from Att'y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) (App 128a). Attorney General Holder stated that he and President Obama were of the view "that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3." App . 129a.
The Attorney General acknowledged that, in light of "the respect appropriately due to a coequal branch of government," the Department "has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense ." App. 127a-128a. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every circuit to consider the issue (i.e., eleven circuits) had held that sexual orientation classifications are subject only to rational

11
basis review, and he acknowledged that "a reasonable argument for Section 3's constitutionality may be proffered under [the rational basis] standard." App . 123a-125a, 129a.
B. The District Court's Decisions in Gill and Massachusetts
Gill v. Office of Personnel Management was filed in March 2009 in the District of Massachusetts by six same-sex couples married in Massachusetts and three surviving spouses of such marriages. The Gill plaintiffs sought to enjoin the executive-branch defendants from enforcing DOMA and to force the executive-branch defendants to extend to the Gill plaintiffs federal benefits available to opposite-sex married couples. In July 2009, Massachusetts filed a companion case styled Massachusetts v. U.S. Department of Health and Human Services asserting that DOMA also violated the Tenth Amendment and the Spending Clause. App. 4a-5a.
The Justice Department defended DOMA in the district court in the Gill and Massachusetts cases, App. 5a, although it declined to defend many of Congress' stated justifications for the statute. See App. 57a-58a ("[T]he government has disavowed Congress's stated justifications for the statute and, therefore, they are addressed below only briefly.").
In Gill, the district court held that Section 3 of DOMA violates the equal protection component of the Fifth Amendment's Due Process Clause. App. 33a. In Massachusetts, the district court held that Section 3 violates the Tenth Amendment and the Spending Clause "by intruding on areas of exclusive state authority" and by "forcing" the Commonwealth

12
to "discriminat[e] against its own citizens in order to receive and retain federal funds" for Medicaid and for veterans' cemeteries. App. 79a.
The executive-branch defendants appealed the district court's rulings in Gill and Massachusetts. The district court stayed its judgments pending appeal. C.A. App. 676, 1425.
C. The Justice Department's About-Face
On appeal, the Justice Department "filed a brief in [the First Circuit] defending DOMA against all constitutional claims." App. 6a. That brief argued that "DOMA is subject to rational basis review under the equal protection component of the Due Process Clause. Under such review the statute is fully supported by several interrelated rational bases." Corrected Br. for U.S. Dep't of HHS, et al. 25, Massachusetts v. U.S. Dep't of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 20, 2011).
Only a few weeks later, in February 2011, the Department performed its "about face" on DOMA, App. 6a, and informed the First Circuit that it would "cease its defense" in the Gill and Massachusetts appeals. Letter from Tony West, Asst. Att'y Gen., to Margaret Carter, Clerk of Court (Feb. 24, 2011) (App. 130a). The House then moved to intervene on appeal, and the Department moved to withdraw its opening brief. App. 6a. The First Circuit granted the House's motion to intervene, but denied the Department's motion to withdraw its opening brief, while permitting the Department to file a superseding brief. See Order (June 16, 2011). In its new brief, the Department not only failed to defend the constitutionality of an Act of Congress but

13
affirmatively attacked it, arguing that "the equal protection claim should be assessed under a 'heightened scrutiny' standard and that DOMA failed that standard." App. 6a. Indeed, the brief affirmatively assailed DOMA's constitutionality and went so far as to attack the motives of individual legislators and charge them with animus.4
D. The First Circuit's Decision
Mfirming the district court, the First Circuit held that Section 3 of DOMA violates equal protection.
Although the Gill plaintiffs, the Department of Justice, and Massachusetts all urged the court below to recognize sexual orientation as a suspect or quasisuspect classification and to apply heightened scrutiny to DOMA, the First Circuit declined to do so. It explained that creating "a new suspect classification for same-sex relationships would have far-reaching implications-in particular by implying an overruling of Baker [v. Nelson, 409 U.S. 810 (1972)], which we are neither empowered to do nor willing to predict." App. lla. The court below also said that it would not declare such classifications suspect because doing so "could overturn marriage laws in a huge majority of individual states." App. 11a.
The First Circuit also rejected the Justice Department's request for the application of "the socalled intermediate scrutiny test," stating that "extending intermediate scrutiny to sexual
4 Mter the Justice Department switched sides in this case, the Gill plaintiffs, supported by the Department, petitioned the First Circuit for initial en bane hearing. The court denied the petition. See Order (Aug. 23, 2011) .

14
preference classifications is not a step open to us." App. lOa. The court noted that in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009), the First Circuit had "declined to create a major new category of 'suspect classification' for statutes distinguishing based on sexual preference," and that Cook "binds the panel." App. lOa.
Significantly, the First Circuit recognized expressly that DOMA passes the rational basis test, stating that, "[u]nder such a rational basis standard, the Gill plaintiffs cannot prevail." App. lOa. The court also noted that the Justice Department conceded this point. See App. lOa ("The federal defendants conceded that rational basis review leaves DOMA intact"); App. 9a ("The federal defendants said that DOMA would survive such rational basis scrutiny").
But the First Circuit did not apply what it called "classic" or "conventional" rational basis review. App. lla, 14a. Instead, it. invented a new standard of equal protection review that it described as involving "intensified scrutiny" and "closer than usual review." App. lla, 7a. See also App. 15a ("closer than usual scrutiny"). The court said that, under this newly minted form of judicial review, the "deference ordinarily accorded" to an Act of Congress is "diminish[ed]." App. 15a.
The First Circuit purported to draw support for its new standard of review from three of this Court's cases, U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U .S. 432 (1985), and Romer v. Evans, 517 U .S. 620 (1996) . Contrary to the First Circuit's

15
claim, however, those cases did not involve a departure from "classic rational basis review." App. 12a. See infra pp . 29-31.
Although it squarely rejected Massachusetts' Tenth Amendment and Spending Clause challenges to DOMA, App. 15a-17a, the First Circuit nonetheless invoked "federalism concerns" in support of its new standard of equal protection review. Indeed, it presented its new standard of review as a fusion of federalism and equal protection concerns. See App . 7a ("equal protection and
federalism concerns * * * combine * * * to require a
closer than usual review"); App . 15a ("Supreme Court precedent relating to federalism-based challenges to federal laws reinforce[s] the need for closer than usual scrutiny of DOMA's justifications and diminish[es] somewhat the deference ordinarily accorded"); App. 19a ("closer examination" of whether DOMA violates equal protection "is uniquely reinforced by federalism concerns"); App. 23a-24a, 25a.
Applying its new form of review, the First Circuit concluded that Section 3 of DOMA "has not been adequately supported by any permissible federal interest." App. 25a. See also App . 23a ("[T]he rationales offered do not provide adequate support for section 3 of DOMA."). The First Circuit's new standard of review was outcome determinative in this case, since the court acknowledged that DOMA satisfies rational basis review. App. lOa.
Although it erred in striking down Section 3 of DOMA, the First Circuit correctly rejected "the charge that DOMA's hidden but dominant purpose was hostility to homosexuality." App. 24a. The

16
court explained that "[t]he opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton." App. 24a. See id. ("[T]he elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.").
The First Circuit sua sponte stayed its mandate on the view that "Supreme Court review of DOMA is highly likely." App. 27a. See also App . 30a-31a (Judgment) (staying mandate); App. 7a ("only the Supreme Court can finally decide" this case).
REASONS FOR GRANTING THE WRIT
As the First Circuit recognized, this case calls out for this Court's review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible. Under this Court's cases, a law with a rational basis that does not implicate a suspect class or heightened scrutiny is constitutional. The court of appeals reached this counterintuitive result by applying an entirely novel form of scrutiny that cannot be reconciled with the approach of this Court and that of ten other circuits. Thus, the decision below invalidates an Act of Congress, conflicts with the decisions of this Court and numerous other courts of appeals, and embraces an entirely novel approach to constitutional equal protection analysis. It is hard to imagine a stronger candidate for this Court's review.

17
Yet there is one more compelling reason for granting this petition. Separation of powers considerations strongly counsel in favor of this Court's review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department-not the House-is institutionally designed. Only this Court can settle this matter definitively. Unless and until this Court decides the question, the executive branch will continue to attack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend. This Court and this Court alone has the power to settle this question and redirect controversy over this important national question to the democratic process.
I. The Constitutionality of Section 3 of DOMA Is an Issue of Great National Importance and Separation-of-Powers Considerations Strongly Counsel 1n Favor of Prompt Review.
The First Circuit struck down Section 3 of DOMA employing novel reasoning to conclude that it violates equal protection. That holding clearly warrants this Court's review. Even in the absence of a circuit split, this Court has indicated that a circuit court decision invalidating an Act of Congress on constitutional grounds is a sufficient basis for this Court's plenary review. See, e.g., Gonzales v. Raich,

18
545 U.S. 1, 9 (2005) (certiorari granted because of the "obvious importance of the case"); United States v. Morrison, 529 U.S. 598, 605 (2000) ("Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari."); Reno v. Condon, 528 U.S. 141, 147-148 (2000); United States v. Bajakajian, 524 U.S. 321, 327
(1998) ("Because the Court of Appeals' holding * * *
invalidated a portion of an Act of Congress, we granted certiorari."); United States v. Edge Broad. Co., 509 U.S. 418, 425 (1993); FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) ("Because the Court of Appeals held an Act . of Congress unconstitutional, we granted certiorari."). In this case, the First Circuit declared unconstitutional a high-profile and important federal statute passed by Congress with overwhelming bipartisan support. The fact that it needed to deviate from settled law of this Court and other circuits and invent an entirely novel form of equal protection review to do so, see infra pp. 28-34, only strengthens the case for review.
Review of the First Circuit's decision is warranted because "[j]udging the constitutionality of an Act of Congress is the gravest and most delicate duty that this Court is called on to perform. The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution." Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 204-205 (2009) (quotation marks and citations omitted). Furthermore, "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Regan v. Time, Inc., 468 U.S. 641, 652 (1984).

19
Because the terms "marriage" and "spouse" are used in numerous federal statutes, including those conferring federal benefits, the First Circuit's decision will have a sweeping impact. By one account, as of 2004, 1,138 provisions in the United States Code made marital status "a factor in determining or receiving benefits, rights, and privileges." U .S. Gen. Accounting Office, GA0-04353R, Defense of Marriage Act 1 (2004). See also App. 4a ("DOMA affects a thousand or more generic crossreferences to marriage in myriad federal laws.").
The issue of DOMA's constitutionality is important not only becquse of the unprecedented number of statutes affected, but also because litigation over DOMA's constitutionality is proliferating. While the First Circuit was the first circuit court to rule on DOMA's constitutionality, three pending DOMA cases are on appeal in two other circuits. See Golinsl?-i v. U.S. Office of Pers. Mgmt., Nos . 12-15388 & 12-15409 (9th Cir.) (oral argument scheduled for week of September 10, 2012) ; Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir.) (oral argument scheduled for week of September 24, 2012); Dragovich v. U.S. Dep't of Treasury, No. 1216461 (9th Cir.) (opening brief on appeal due October 4, 2012). A DOMA appeal is also pending in the U.S. Court of Appeals for Veterans Claims. See Cardona v. Shinseki, No. 11-3083 (Vet. App.).
District courts have rendered conflicting decisions on DOMA's constitutionality. Four district courts have held that Section 3 of DOMA is constitutional. See Lui v. Holder, No. 2:11-cv-01267 (C.D. Cal. Sept. 28, 2011); Torres-Barragan v. Holder, No. 2:09-cv08564 (C.D. Cal. Apr. 30, 2010); Wilson v. Ake, 354

20
F. Supp. 2d 1298 (M.D . Fla. 2005); Hunt v. Ake, No. 04-1852 (M.D. Fla. Jan. 20, 2005).5
Three district courts (and the district court in this case) have held that DOMA is unconstitutional, based on widely divergent rationales. The court in Windsor v. United States, 833 F. Supp. 2d 394, 402 (S.D.N.Y. 2012), followed the First Circuit's approach in this case and applied "intensified scrutiny." In Dragovich v. U.S. Department of the Treasury, No. 10-1564, 2012 WL 1909603, at *10, *14 (N.D. Cal. May 24, 2012), the court applied rational-basis scrutiny but concluded, contrary to the panel below, that DOMA is invalid because it was motivated by "animus." The court in Golinski v. U.S. Office of Personnel Management, 824 F. Supp. 2d 968, 989-90 (N.D. Cal. 2012), took yet another approach and held that heightened scrutiny should apply to sexual orientation classifications and that DOMA is invalid under that standard. All three of those decisions are now on appeal. Additionally, the district court in this case held that DOMA violates the Tenth Amendment and the Spending Clause. See supra pp. 11-12. 6
5 A fifth district court also upheld DOMA's constitutionality, but that portion of its judgment was vacated on appeal on the ground that the unmarried plaintiffs challenging DOMA in that case lacked standing. See Smelt v. Cnty. of Orange , 374 F. Supp. 2d 861 (C.D. Cal. 2005) , aff'd in part and vacated in part for lack of standing, 477 F.3d 673 (9th Cir. 2006), cert. denied, 549 U .S . 959 (2006). 6 Two bankruptcy courts within the Ninth Circuit have reached opposite conclusions on DOMA's constitutionality. Compare In re Kandu, 315 B.R. 123 (Bankr. W.D . Wash. 2004) (DOMA constitutional) with In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) (DOMA unconstitutional). The Balas opinion added to

21
There are currently seven other DOMA cases pending in district courts around the country in six different circuits. See Bishop v. United States, No. 04-848 (N.D. Okla.); Pedersen v. Office of Pers. Mgmt., No. 10-1750 (D. Conn.); Revelis v. Napolitano, No. 11-1991 (N.D. Ill.); Cozen O'Connor, P.C. v. Tobits, No. 11-45 (E.D . Pa.); McLaughlin v. Panetta, No. 11-11905 (D . Mass.); Cooper-Harris v. United States, No. 12-887 (C.D. Cal.); Blesch v. Holder, No. 12-1578 (E.D.N.Y.).
This proliferation of cases is a product of the Department's incoherent decision to implement-butnot-defend DOMA. That awkward posture not only forces executive branch officials to take actions that executive branch lawyers will not defend, but also forces the House into a litigation role for which it is not institutionally staffed or designed. Because the Justice Department has abdicated its responsibility to defend DOMA, an Act of Congress, the House has had to intervene in all of the pending cases to defend Congress' handiwork and do the Department's job for it. And to be clear: the Justice Department not only has ceased to defend DOMA but is affirmatively attacking the statute and the motives of the
the confusion in the lower courts by additionally concluding that DOMA is unconstitutional sex discrimination. Id. at 577. It should be noted that the DOMA issue in Balas was generated by the Department's incoherent position that it will enforce but not defend DOMA. The Department's own U.S . Trustee affirmatively created the constitutional issue by moving to dismiss, on the basis of DOMA, a joint bankruptcy petition filed by a same-sex couple; the U.S. Trustee, having created the issue, then refused to defend the statute on the basis of the Attorney General's direction not to defend the statute; and no other party defended DOMAin that case.

22
legislators who enacted it, many of whom still serve. The lower court litigation thus inverts the normal order and pits the political branches against each other. Only this Court has the capacity to settle this matter. Unless and until this Court settles the constitutional matter, the executive will continue to enforce the statute while attacking it in court. Only this Court has the potential to redirect the fractious debate to the democratic process where issues like this are best resolved.
II. The Decision Below Conflicts With This Court's Decision in Baker v. Nelson and With the Decisions of Other Courts of Appeals.
The decision below not only invalidates an Act of Congress on constitutional grounds, but it does so in a way that conflicts with binding precedent of this Court-Baker v. Nelson , 409 U.S. 810 (1972)-and other circuits. In Baker, the State of "Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute." App. 8a. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971).
The plaintiffs in Baker, a same-sex couple, were denied a marriage license "on the sole ground that [they] were of the same sex." Id. at 185. They brought an equal protection challenge to Minnesota's statute , arguing that "restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory." Id. at 186. The Minnesota Supreme Court rejected their challenge, holding that equal protection "is not offended by the state's classification of persons authorized to marry.

23
There is no irrational or invidious discrimination." Id. at 187.
The plaintiffs appealed to this Court under former 28 U.S.C. § 1257(2). Their Jurisdictional Statement presented the question "[w]hether appellee's refusal, pursuant to Minnesota marriage statutes, to sanctify appellants' marriage because both are of the male sex violates their rights [to] equal protection." Jurisdictional Statement 3, Baller v. Nelson, No. 711027 (S.Ct. Feb. 10, 1972). The plaintiffs argued to this Court that Minnesota law unconstitutionally discriminated based on both sex and sexual orientation. On the latter point, they argued that "there is no justification in law for the discrimination against homosexuals," and that they were "similarly circumstanced to childless heterosexual couples" and therefore entitled to the same "benefits awarded by law." Id. at 10, 17 (quotation marks omitted) . They argued that the Minnesota marriage statute failed both heightened scrutiny and rational basis review. See id. at 15 (arguing that the state's proscription of "single sex marriage" did not "describe a legitimate government interest which is so compelling that no less restrictive means can be found" and in the alternative that "Minnesota's proscription simply has not been shown to be rationally related to any governmental interest").
This Court dismissed the appeal "for want of a substantial federal question." Baller, 409 U .S. at 810. Such dismissals are, of course, decisions on the merits, and lower courts are "not free to disregard" them. Hiclls v. Miranda, 422 U.S . 332, 344 (1975). "Summary affirmances and dismissals for want of a substantial federal question without doubt reject the

24
specific challenges presented in the statement of jurisdiction * * *." Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam).
Here, the First Circuit recognized that Baker "is binding precedent." App. Sa. It also recognized that, unless and until this Court says otherwise, Baker forecloses any arguments that "presume or rest on a constitutional right to same-sex marriage." App. Sa. Having recognized those things, the First Circuit should have recognized that Baker controls this case. As the First Circuit acknowledged, Baker stands for the proposition that a state may use the traditional definition of marriage without violating equal protection. It necessarily follows that Congress may use the same traditional definition of marriage for federal purposes without violating equal protection. 7
The First Circuit was able to evade the clear implications of Baker for this case only by creating an entirely novel form of equal protection review that deviates from this Court's precedents and the law in virtually every other circuit. Those further conflicts only underscore the need for this Court's review. See Braxton v. United States, 500 U.S. 344, 347 (1991) ("A principal purpose for which we use our certiorari jurisdiction * * * is to resolve conflicts among the United States courts of appeals.").
7 "[T]his Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment." Adarand Constructors, Inc. v. Peiia, 515 U.S. 200, 217 (1995) (quotation marks omitted). Thus, the fact that Baker involved the Fourteenth Amendment, while this case involves the Fifth Amendment, is of no moment.

25
In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982), the Ninth Circuit held that it was constitutional for Congress to limit a spousal immigration preference to opposite-sex spouses. The case involved a same-sex couple who "were 'married' by a minister" and "obtained a marriage license from the county clerk in Boulder, Colorado." 673 F.2d at 1038. The Ninth Circuit assumed arguendo that the marriage was valid under state law, see id. at 1039, but found that "Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b)" of the Immigration and Nationality Act. Id. at 1041.
The Ninth Circuit then rejected the couple's claim that "the law violates the equal protection clause because it discriminates against them on the bases of sex and homosexuality." Id. (footnote omitted). Applying the rational basis test, the Ninth Circuit held "that Congress's decision to confer spouse status under section 201(b) only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements." Id. at 1042.
Finding it unnecessary to enumerate all of the rational bases Congress possibly could have had, the Ninth Circuit said that Congress rationally could have "determined that preferential status is not warranted" for same-sex marriages because such "marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores." Id. at 1042, 1043. Finally, although Adams arose in the immigration context, the Ninth

26

Circuit applied ordinary rational basis review, stating that "[t]here is no occasion to consider in this case whether some lesser standard of review should apply." Id. at 1042.

The decision below also conflicts with McConnell v.

Nooner, 547 F.2d 54 (8th Cir. 1976) (per curiam).

That case involved the same two men who filed suit

in Baker v. Nelson. Unlike the Baker case, in which

the men were seeking to be married, in McConnell

the men already had "obtained a marriage license

from the Blue Earth County Court Clerk" and "were

'married' by a minister." Id. at 55. Baker, a veteran,

then petitioned for increased veteran's education

benefits "on grounds that McConnell was his

dependent spouse."

Id.

The Veterans

Administration denied the request "on grounds that

McConnell was not the spouse of the veteran Baker."

Id. The district court dismissed the suit "on the

basis that Baker v. Nelson, supra, was dispositive of

the issues." Id. The Eighth Circuit agreed and

affirmed. Id. s

Additionally, the First Circuit's decision conflicts with the holdings of ten other circuits that sexual orientation is not a suspect classification and hence ordinary rational basis review applies to such classifications. See, e.g., Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012) ("Because this court has not recognized sexual orientation as a ·suspect classification, Davis's claim is governed by

8 See also McConnell v. United States, 188 F. App'x 540, 541 (8th Cir. 2006) (per curiam) (affirming the dismissal of McConnell's "complaint seeking a federal tax refund arising from his marital status and seeking a declaration that his 1971 Minnesota same-sex marriage is lawful").

27
rational basis review."); Witt v. Dep't of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 n.9 (lOth Cir. 2008) ("[T]his court, like many others, has previously rejected the notion that homosexuality is a suspect classification.") (citing cases from the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, District of Columbia, and Federal Circuits); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec'y of Dep 't of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) ("[A]ll of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class.") (citing cases), cert. denied, 543 U.S. 1081 (2005) ; Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir. 1996), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 684-85 (D.C. Cir. 1994) (en bane); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573-574 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.3d 97, 101-104 (D.C. Cir. 1987); see also Cook v. Gates , 528 F.3d 42 (1st Cir. 2008) (applying ordinary rational basis review to, and upholding, the military's "don't ask, don't tell" policy), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). Every circuit that has ruled on the issuei.e., every circuit except the Second and Third Circuits-has held that sexual orientation classifications are not suspect and thus are reviewed under the rational basis test.

28
For example, Citizens for Equal Protection v. Bruning, supra, involved an equal protection challenge to Article I, § 29 of the Nebraska Constitution, which provides that "[o]nly marriage between a man and a woman shall be valid or recognized in Nebraska." Neb. Const. art. I, § 29. The Eighth Circuit held that "§ 29 should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny." Citizens for Equal Protection, 455 F.3d at 866.
Similarly, as discussed above, the Ninth Circuit in Adams v. Howerton applied the rational basis test in reviewing a Fifth Amendment equal protection challenge to Congress' decision to limit an immigration preference for spouses to opposite-sex spouses. See Adams, 673 F.2d at 1042.
As explained next, the First Circuit's effort to evade this wall of precedent, and its own circuit law, by invoking an entirely novel form of equal protection review only underscores the need for plenary review.
III. The Court of Appeals Invented a New Standard of Equal Protection Review.
The First Circuit correctly recognized that it would be error to apply either strict or intermediate scrutiny to Section 3 of DOMA and that the statute passes rational basis scrutiny. But instead of drawing the only conclusion permitted by wellestablished law-that a law not subject to strict or intermediate scrutiny and supported by a rational basis is constitutional-the First Circuit found another way to invalidate DOMA, by inventing a

29
previously unknown standard of equal protection review. 9
This Court's cases recognize three, and only three, levels of equal protection review, and the Court has not expressed any enthusiasm for complicating matters further.
In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment, we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. Classifications based on race or national origin, and classifications affecting fundamental rights, are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy.
9 Although the First Circuit denied that it was applying any form of heightened scrutiny, it described Section 3 of DOMA as drawing a distinction "against a historically disadvantaged group * * * less able to protect itself through the political process." App. 21a. But the notion that the same-sex marriage movement lacks political power simply blinks reality. Not only is the executive branch attacking DOMA in this and other cases, but same-sex marriage is supported by President Obama, Vice President Biden (who voted for DOMA as a Senator in 1996), the Senate majority leader, and the House minority leader. Nearly one-third of the Members of the House filed an amici brief in the court below attacking both the wisdom and constitutionality of DOMA. The political process stands ready to address this matter with ample political support for both sides of the debate .

30
Clark v. Jeter, 486 U.S. 456, 461 (1988) (citations omitted).
In defense of its decision to eschew "classic rational basis review" in favor of "intensified scrutiny," App. 11a, the First Circuit heavily relied upon three of this Court's cases: Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973). See App. 12a-15a. But none of those cases supports a deviation from the well-established three tiers of equal protection review, let alone justifies the First Circuit's novel federalism-based standard.
In Romer, this Court went out of its way to make clear that it was applying the "conventional" rational basis test to Colorado's Amendment 2. This Court said that
if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g. , Heller v. Doe, 509 U.S. 312 (1993). Amendment 2 fails, indeed defies, even this conventional inquiry.
Romer, 517 U.S. at 631-632 (emphasis added). Thus, contrary to the First Circuit's assertion (and the complaints of the Romer dissent, see id. at 651 (Scalia, J., dissenting)), the Romer Court did indeed apply "conventional rational basis review." App . . 14a. See also Romer, 517 U.S. at 635 ("[A] law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not.") (citation omitted).

31
Nor does Cleburne support what the First Circuit did here. In that case, the Fifth Circuit "erred in holding mental retardation a quasi-suspect
classification calling for a, more exacting standard of
judicial review than is normally accorded economic and social legislation." 473 U.S. at 442. Here, the First Circuit committed a similar, but even more glaring, error in refusing to apply conventional rationa~ basis review to DOMA while expressly acknowledging that it would survive conventional scrutiny. See App. lOa ("Under [the conventional] rational basis standard, the Gill plaintiffs cannot prevail."). In Cleburne, this Court applied "[t]he general rule" that "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest," and found the ordinance lacking under that standard. 473 U.S. at 440. The First Circuit's approach thus draws no support from Cleburne.
Finally, in Moreno, the only one of the three cases to involve a federal statute, this Court applied "traditional equal protection analysis." 413 U.S. at 533. Accord id. at 538 ("[t]raditional equal protection analysis"). Reciting the traditional test, this Court stated that "a legislative classification must be sustained, if the classification itself is rationally related to a legitimate government interest." Id. at 533. Here, the First Circuit recognized that Section 3 of DOMA passes traditional equal protection analysis, but it struck down DOMA nonetheless. Nothing in this Court's cases supports that counterintuitive result.

32
As further justification for its new form of equal protection review, the First Circuit relied upon purported "federalism concerns." See supra p. 15. The court's invocation of federalism concerns is doubly surprising. First, this Court has gone to great lengths to underscore that there is only one constitutional standard of equal protection, and it applies equally to federal and state actions. See supra n.7. Second, and even more fundamentally, the Constitution's equal protection guarantees exist to constrain government action, not to protect the states. "[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups." Adarand, 515 U .S. at 227 (emphases in original). A federalism overlay to equal protection 1s fundamentally misplaced.
Moreover, the court of appeals specifically rejected the argument that Section 3 of DOMA violates the Tenth Amendment or the Spending Clause. As to the Tenth Amendment, the court found that DOMA "governs only federal programs and funding" and "does not commandeer state governments or otherwise directly dictate the internal operations of state government." App. 16a-17a (emphasis in original) (citing Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992)). And as to the Spending Clause, the court concluded that DOMA does not "run afoul of the 'germaneness' requirement that conditions on federal funds must be related to federal purposes." App. 17a (citing South Dakota v. Dole, 483 U.S. 203, 208 (1987)). "This requirement is not implicated," the First Circuit explained, "where, as here, Congress merely defines the terms of the federal

33
benefit." App. 17a. But for the same basic reason· that Section 3 only implicates the definition of marriage for federal law purposes-a federalismbased intensified scrutiny would be inapplicable to DOMA even if it existed, which it does not.
The First Circuit cited (App. 17a) United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), but those are Commerce Clause cases. They provide no support for the First Circuit's invention of an "intensified scrutiny" standard of equal protection review under the Due Process Clause of the Fifth Amendment. The First Circuit's citation (App. 18a) to Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009), is similarly off base. That opinion discussed the Voting Rights Act's intrusion on state sovereignty. It did not call for "closer than usual" review of equal protection claims in any context.
The First Circuit's application of a new form of equal protection review is dubious for a final reason. The court stated that its new standard of review was based not on any existing precedent of this Court, · but on a prediction of what this Court would do were DOMA before it. See App . 15a (predicting that the "deference accorded to ordinary economic legislation
* * * would not be extended to DOMA by the
Supreme Court"). But the proper role of a court of appeals is to apply this Court's cases, not to forecast doctrinal developments that this Court might (or might not) make someday in the future. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

34
This Court has never recognized a standard of equal protection review hovering between the rational basis test and intermediate scrutiny, and no precedent of this Court supports the application of anything other than ordinary rational basis review to DOMA. Indeed, this Court's decision in Baker v. Nelson holds that a classification based on the traditional definition of marriage does not violate equal protection. The First Circuit erred, and did so egregiously, by striking DOMA down on the basis of a prediction that this Court would apply a previously unknown standard of "intensified scrutiny" to DOMA.
Although the First Circuit erred in inventing a new form of equal protection review, it was certainly correct about one point: "only the Supreme Court can ·finally decide" this case. App. 7a. Further litigation in the lower courts promises only further conflict between the political branches before courts that cannot definitively decide the issue. Only this Court has the power to settle this issue and return the debate to the democratic process where it belongs.

35
CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted.
Respectfully submitted,
PAUL D. CLEMENT
Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI CONOR B. DUGAN
NICHOLAS J. NELSON
BANCROFT PLLC
1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER
General Counsel
WILLIAM PITTARD
Deputy General Counsel
CHRISTINE DAVENPORT
Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Petitioner
June 29, 2012

 
 No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
Respondents who were plaintiffs below are the Commonwealth of Massachusetts, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary Bowe-Shulman, Dorene Bowe-Shulman, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened in the court of appeals to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and statutory provisions involved . . . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 11
A. This Court’s review is warranted because the court of appeals invalidated an Act of Congress . . . . . 13
B. The decision below raises important questions of federal law that should be settled by this Court . . . . . 14
C. Authoritative resolution of the question presented is of great public importance . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Appendix A – Opinion of the court of appeals
(May 31, 2012) . . . . . . . . . . . . . . . . . . . . . . . 1a Appendix B – Opinion of the district court, Gill v.
Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 29a Appendix C – Order of the district court, Gill v. Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 73a Appendix D – Amended judgment of the district court, Gill v. Office of Personnel Management (Aug. 17, 2010) . . . . . . . . . . . . . . . . . . . . . . 75a Appendix E – Opinion of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 82a Appendix F – Order of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . 121a Appendix G – Judgment of the district court, Massachusetts v. United States Department of Health & Human Services (Aug. 12, 2010) . . . . 123a
(III)

IV

Table of Contents—Continued:

Page

Appendix H – Constitutional and statutory provisions . . . . . . . . . . . . . . . . . . . . . . . . . 125a

Cases:

TABLE OF AUTHORITIES

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 14
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . 3
Baker v. Nelson:
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . . . 8
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) . . . . . . . . . 16, 19, 20, 21
Blodgett v. Holden, 275 U.S. 142 (1927) . . . . . . . . . . . . . . . 14
Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . 14
Bowen v. Gilliard, 483 U.S. 587 (1987) . . . . . . . . . . . . . . . . 16
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . 19
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . . . . 20
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . 9, 14, 15, 16, 17

V

Cases—Continued:

Page

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . 15
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009) . . . . . . . . 6, 9, 18, 19, 21
Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . 13
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998) . . . . . . . . . . . . . . . . . . . 20
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) . . . . . 15
Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 21
Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . . . . . . . . 3
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . 19
Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . 14
Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . 17
Heller v. Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . 6
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . 16, 19, 20, 21
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . 12
Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . 10, 16, 17, 20
Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 542 U.S. 1081 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006) . . . . . . . . . . . . . . . . . . . . 5

VI

Cases—Continued:

Page

National Gay Task Force v. Board of Educ., 729 F.2d 1270 (10th Cir. 1984), aff ’d by an equally divided court, 470 U.S. 903 (1985) . . . . . . . . . . . . . . . . . . 19
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. . . . . . . . . . . . . . . . . 12
Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) . . . . . . . . 20
Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . . 13
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997) . . . . . . . . . . . . . . . . . . . 19
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . 9, 16, 18
Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . 14, 19
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) . . . . . . . 14
South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . 5
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) . . . . . . . . . . 19
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996) . . . . . . . . . . . . . . . . . . . 19
United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 14
United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . 14
United States v. Stevens, 130 S. Ct. 1577 (2010) . . . . . . . . 14
United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 15 United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . 14 United States Dep’t of Agric. v. Moreno, 413 U.S. 528
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII

Cases—Continued:

Page

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . 13
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) . . . . . . . . . 19, 20

Constitution, statutes and rule:

U.S. Const.: Art. I, § 8, Cl. 1 (Spending Clause) . . . . . . . . . . . . . . . 5, 10 Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8, 11, 18 Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . 2, 11 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . . passim
5 U.S.C. 8901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. 106 (2006 & Supp IV 2010) . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 42 U.S.C. 402(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 402(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 17, 18
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/ opa/pr/ 2011/February/11-ag-223.html . . . . . . . . . . 6, 7, 12

VIII

Miscellaneous—Continued:

Page

U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/new.items/ d04353r.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

In the Supreme Court of the United States
No. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS v.
COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States Department of Health and Human Services et al., respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a28a) is not yet reported but is available at 2012 WL 1948017. The opinion of the district court in Gill v. Office of Personnel Management (App., infra, 29a-72a) is reported at 699 F. Supp. 2d 374. The opinion of the district court in Massachusetts v. United States Depart-
(1)

2
ment of Health & Human Services (App., infra, 82a120a) is reported at 698 F. Supp. 2d 234.
JURISDICTION
The judgment of the court of appeals was entered on May 31, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 125a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only

3
to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including respondent Massachusetts, have since recognized such marriages under their respective laws. See App., infra, 2a-3a nn.1-2; Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that recognize them, it excludes all such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/ new.items/d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18; App., infra, 3a-4a, 13a-14a. 2. a. The individual respondents are seven same-sex couples married in Massachusetts and three surviving spouses of same-sex couples married in Massachusetts. They filed suit in the United States District Court for the District of Massachusetts, alleging that, as a result

4 of Section 3, they had been denied certain federal benefits otherwise available to married couples or surviving spouses, including federal health plan benefits for spouses of federal employees, see 5 U.S.C. 8901 et seq.; social security benefits for surviving spouses of insured individuals, see 42 U.S.C. 402(f) and (i), and benefits based on the earnings record of a spouse; and the ability to file federal income tax returns as married joint filers or to exclude the value of employer-provided health insurance coverage for a spouse from federally taxable income, see 26 U.S.C. 106 (2006 & Supp. IV 2010). Second Am. Compl. ¶¶ 67-413, Gill v. Office of Pers. Mgmt., No. 1:09-cv-10309 (D. Mass. May 25, 2010); see App., infra, 4a, 10a. They contended that Section 3 violates the right of equal protection secured by the Fifth Amendment and sought to enjoin Section 3’s enforcement, as well as other relief. Ibid.
Respondent Massachusetts filed a separate action challenging the constitutionality of Section 3 of DOMA. Massachusetts alleged that, as a result of Section 3, it would risk loss of federal funding if it treated legally married same-sex couples as married for purposes of determining eligibility for participation in the State’s Medicaid program or for burial as a spouse of a veteran in a veterans’ cemetery funded in part by federal grants. Compl. ¶¶ 46-79, Massachusetts v. United States Dep’t of Health & Human Servs., No. 1:09-cv-11156 (D. Mass. July 8, 2009); see App., infra, 4a-5a. Massachusetts contended that Section 3 violates the Tenth Amendment and principles of federalism and the Spending Clause as applied to the Medicaid and State Cemetery Grants Program. Massachusetts sought to enjoin enforcement of Section 3, as well as other relief. Compl. ¶¶ 80-100, Massachusetts, supra.
b. In separate opinions issued on the same day, the district court held Section 3 of DOMA unconstitutional

5 and entered judgment against petitioners. App., infra, 29a-72a, 75a-81a. Ruling in favor of the individual respondents in Gill, the court concluded that Section 3 violates the Fifth Amendment’s equal protection guarantee. Without addressing respondents’ argument that Section 3 should be subject to strict constitutional scrutiny, the district court concluded that Section 3 “fails to pass constitutional muster even under the highly deferential rational basis test,” id. at 51a, because “ ‘there exists no fairly conceivable set of facts that could ground a rational relationship’” between the classification employed in DOMA Section 3 “and a legitimate government objective,” ibid. (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006)); see id. at 51a-71a.
In a separate opinion, the district court ruled in favor of Massachusetts on its action. App., infra, 82a-120a. The court concluded that Section 3 violates the Spending Clause because it impermissibly “induce[s] the States to engage in activities that would themselves be unconstitutional” by conditioning federal funds on the denial of marriage-based benefits to legally married same-sex couples without a rational basis for the differential treatment. Id. at 108a (quoting South Dakota v. Dole, 483 U.S. 203, 210 (1987)). The court further concluded that Section 3 violates the Tenth Amendment because it “plainly intrudes on a core area of state sovereignty— the ability to define the marital status of its citizens.” Id. at 111a.
The district court enjoined petitioners from enforcing Section 3, but stayed its order pending appeal. App., infra, 5a.
3. The government appealed in both cases, and the cases were consolidated in the court of appeals. In its opening brief, the government explained that binding First Circuit precedent holds that classifications based

6 on sexual orientation are subject to rational basis review, rather than the more searching review applicable to constitutionally suspect or quasi-suspect classifications such as race, national origin, gender, or illegitimacy. Gov’t Initial C.A. Br. 25-26 (citing Cook v. Gates, 528 F.3d 42, 60, 62 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009)). Pointing to this Court’s cases holding that a classification subject to rational basis review “must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 27 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)), the government argued that Section 3 satisfies that “highly deferential” standard, id. at 26, 29-55.
After the government filed its opening brief in this case, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (Attorney General Letter).1 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the rele-
1 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

7 vance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
After the Attorney General’s letter, the government informed the First Circuit that it would no longer defend the constitutionality of Section 3 and sought to withdraw its opening brief. The court of appeals denied the government’s motion but permitted the government to file a superseding brief. 6/16/11 Order 2. The government thereafter filed a superseding brief in the court of appeals in which it set forth its view that Section 3 is unconstitutional under heightened scrutiny. The government argued that the legislative purposes motivating

8 the enactment of Section 3, as articulated in the 1996 House Report, are insufficient to justify the exclusion of same-sex couples legally married in their States from federal benefits available to other married couples. See Gov’t Superseding C.A. Br. 22-23.
Respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.2 The court of appeals granted the motion. 6/16/11 Order 2.
4. The individual respondents petitioned for initial hearing en banc. The court of appeals denied the petition, with three judges dissenting. A panel of the court of appeals then affirmed the judgment of the district court in part, holding DOMA Section 3 invalid under the equal protection component of the Fifth Amendment. App., infra, 1a-28a.
At the outset, the court of appeals distinguished the question at issue in this case from the question whether a State constitutionally may choose to limit marriage to persons of the opposite sex. App., infra, 7a-8a; see also id. at 23a-24a. The court thus rejected BLAG’s threshold argument that “any equal protection challenge to DOMA is foreclosed” by this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision upholding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, see Baker v. Nelson, 191 N.W.2d 185, 185187 (1971). App., infra, 7a. The court of appeals reasoned that because Baker concerned a different question, the Court’s summary dismissal cannot resolve this
2 Two of the group’s five members declined to support intervention. BLAG C.A. Mot. to Intervene 1 n.1 (May 20, 2011).

9 case. Id. at 8a. In the court’s view, however, Baker “does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Ibid.
To evaluate the constitutionality of Section 3, the court concluded that it was bound by its precedent to apply rational basis review. App., infra, 10a (citing Cook, supra). The court determined that Section 3’s challengers could not prevail under what it termed “classic rational basis review,” id. at 11a—i.e., “rational basis review as conventionally applied in routine matters of commercial, tax and like regulation,” id. at 9a—under which “[c]ourts accept as adequate any plausible factual basis” for a law that distinguishes between different groups of people, “without regard to Congress’ actual motives” or to whether Congress’s chosen means are “entirely consistent with” its legislative ends, ibid.
The court of appeals concluded, however, that Section 3 warrants more searching review than “the extreme deference accorded to ordinary economic legislation.” App., infra, 14a. The court of appeals relied for that conclusion on cases in which this Court has “struck down state or local enactments without invoking any suspect classification” where “the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.” Id. at 11a-12a (citing United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996)). The court of appeals noted that, in each of those cases, the Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute” and “undert[ook] a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review,” id. at 13a, focusing on “the case-specific

10 nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered,” id. at 12a. The court of appeals concluded that Section 3 warrants similarly careful review because “gays and lesbians have long been the subject of discrimination,” id. at 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)), and because Section 3 imposes substantial burdens on married same-sex couples by precluding access to “medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country,” id. at 14a.
In the court of appeals’ view, that analysis “is uniquely reinforced by federalism concerns.” App., infra, 18a. The court concluded that, while “neither the Tenth Amendment nor the Spending Clause invalidates DOMA,” id. at 14a, Section 3 represents a broad intrusion on the States’ historic powers to regulate domestic relations, and, as such, warrants more searching examination of the purported bases for the legislation, id. at 14a-18a.
The court of appeals concluded that the rationales for Section 3, as reflected in the 1996 House Report and amplified in briefing, are insufficient to justify the statute’s burden on same-sex married couples. App., infra, 18a-24a. The court reasoned that neither a desire to “preserv[e] scarce government resources” nor to express moral disapproval, without more, justifies differential treatment of “a historically disadvantaged group,” id. at 19a-20a. It further reasoned that Section 3 lacks “any demonstrated connection” to a statutory purpose of “support[ing] child-rearing in the context of stable marriage” or of promoting heterosexual marriage, since Section 3 neither precludes same-sex couples in Massachusetts from raising children nor “affect[s] the gender choices of those seeking marriage” in that State. Id. at 20a-21a.

11
Finally, the court rejected the argument that, in the face of “a prospective change in state marriage laws, Congress was entitled to ‘freeze’ the situation and reflect,” explaining that “[t]he House Report’s own arguments—moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.” App., infra, 22a. And while the House Report “did emphasize a related concern * * * that state judges would impose same-sex marriage on unwilling states,” the court explained that States can “protect themselves against what their citizens may regard as overreaching,” and that the concern in any event is addressed by Section 2 of DOMA, which is not at issue in this case. Ibid.
In evaluating Section 3’s constitutionality, the court of appeals “d[id] not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App., infra, 23a. The court reasoned that “[t]he many legislators who supported DOMA acted from a variety of motives,” including a desire to “preserve the heritage of marriage as traditionally defined.” Ibid. But the court concluded that Section 3 is invalid because the “denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Id. at 24a.
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. The court of appeals correctly concluded that none of the rationales for Section 3’s passage justifies such disparate treatment of same-sex married couples. Section 3 therefore violates the guarantee of equal protection secured by the Fifth Amendment.

12
Although the Executive Branch agrees with the court of appeals’ determination that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As federal officials charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a federal statute on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).3
3 The fact that the government agrees with respondents that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department's position in this case. The Department did not oppose the subsequent interven-

13
This Court’s review is warranted because the court of appeals invalidated an Act of Congress, and because the court of appeals’ decision raises important questions concerning the proper standards for reviewing classifications based on sexual orientation that should be resolved by this Court. Authoritative resolution of the question presented is of great importance to the United States and to respondents and tens of thousands of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law. The petition for a writ of certiorari should be granted.
A. This Court’s Review Is Warranted Because The Court Of Appeals Invalidated An Act Of Congress
Review by this Court is warranted because the court of appeals invalidated a provision of an Act of Congress as unconstitutional. Although no other court of appeals
tion by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation). Because the Executive Branch petitioners have properly invoked the jurisdiction of this Court, there is no need for the Court to address the question whether BLAG has independent standing to seek review of the court of appeals’ decision.

14
has yet passed on the constitutionality of Section 3 of DOMA, this Court’s ordinary practice is to grant review when a court of appeals holds a federal statute unconstitutional, even in the absence of a circuit conflict. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000); National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty” of the courts. Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Respect for a coequal branch of government counsels in favor of reviewing a lower court’s exercise of “the grave power of annulling an Act of Congress.” United States v. Gainey, 380 U.S. 63, 65 (1965).
B. The Decision Below Raises Important Questions Of Federal Law That Should Be Settled By This Court
Review is also warranted because the court of appeals’ invalidation of Section 3 raises important questions of federal law that have not been, but should be, settled by this Court. See Sup. Ct. R. 10(c).
1. The Constitution’s equal protection guarantee, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a basic requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

15 Under this Court’s precedents, general social and economic legislation is ordinarily presumed valid, even though it may draw distinctions between different classes of individuals. Cleburne, 473 U.S. at 440. The Court will thus generally uphold such legislation if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). This Court has held that this deferential framework of review does not, however, apply to legislation that classifies on the basis of certain characteristics, including race, national origin, illegitimacy, and gender, that are deemed “suspect” or “quasi-suspect.” “These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.” Cleburne, 473 U.S. at 440-441. The law thus calls for more searching constitutional review of such classifications to determine whether they are adequately justified by legitimate state interests. Heightened scrutiny calls on courts to examine only the “actual [governmental] purposes” underlying such classifications rather than “rationalizations for actions in fact differently grounded,” United States v. Virginia, 518 U.S. 515, 535-536 (1996), and to determine, at a minimum, whether the classification bears a substantial relationship to an important governmental objective, Clark v. Jeter, 486 U.S. 456, 461 (1988). This Court’s cases have identified a number of factors to guide the determination whether heightened scrutiny applies to legislation targeting certain classes of individuals for less favorable treatment. These factors include: (1) whether the group in question has suf-

16 fered a history of discrimination; (2) whether members of the group share obvious, immutable, or distinguishing characteristics; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion); see also Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Cleburne, 473 U.S. at 435-441.
2. Section 3 of DOMA draws distinctions between couples who are legally married under their States’ laws based on their sexual orientation. It excludes same-sex married couples—whether men or women—from the federal recognition and benefits available to oppositesex married couples.
This Court has never decided the appropriate equal protection framework for reviewing classifications based on sexual orientation. Cf. Romer v. Evans, 517 U.S. 620, 634-635 (1996) (invalidating a state constitutional amendment prohibiting any state or local action designed to protect gay and lesbian individuals as lacking a rational basis, without considering whether the classification warranted heightened scrutiny). The factors the Court has identified as relevant to the inquiry, however, counsel strongly in favor of treating sexual orientation classifications with suspicion.
As the court of appeals noted, “gays and lesbians have long been the subject of discrimination.” App., infra, 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465-466 (7th Cir. 1989) (“Homosexuals have suffered a history of discrimination and still do, though possibly

17 now in less degree.”), cert. denied, 494 U.S. 1004 (1990). Gay and lesbian individuals also represent a “minority,” App., infra, 22a, that has “historically been less able to protect itself through the political process,” id. at 20a. That group is defined by a distinguishing characteristic—sexual orientation—that is not ordinarily “relevant to interests the State has the authority to implement,” Cleburne, 473 U.S. at 441. Heightened scrutiny of legislative classifications based on sexual orientation is therefore warranted to ensure that they do not “invidiously relegat[e]” gay and lesbian individuals to “inferior legal status,” Frontiero, 411 U.S. at 687 (plurality opinion), based simply on a view that gay and lesbian individuals as a class “are not as worthy or deserving as others,” Cleburne, 473 U.S. at 440.
Section 3 of DOMA fails under heightened scrutiny. The disparate treatment of gay and lesbian individuals who are legally married under state law does not substantially advance any important governmental purpose that motivated the enactment of Section 3.
To begin with, because Section 3 does not purport to forbid same-sex marriage, but instead simply denies federal benefits to same-sex couples who are already married, it does not meaningfully advance any cognizable federal interest in “defending and nurturing the institution of traditional, heterosexual marriage.” 1996 House Report 12. Nor does denying benefits to samesex married couples substantially further an interest in “encouraging responsible procreation and child-rearing.” Id. at 13.
This Court’s cases, moreover, have made clear that neither moral disapproval nor the desire to preserve “scarce government resources,” 1996 House Report 12, adequately justifies legislation that targets suspect or quasi-suspect classes for adverse treatment, see Law-

18 rence, 539 U.S. at 577; Graham v. Richardson, 403 U.S. 365, 374-375 (1971).
Finally, insofar as the House Committee Report cited the federal government’s interest in “protecting state sovereignty and democratic self-governance,” it cited that rationale in connection with Section 2, not Section 3. 1996 House Report 16-18. Section 3 bears no substantial connection to that rationale in any event; it was not, for example, “framed as a temporary measure” to facilitate the States’ own choices about whether to recognize same-sex marriage, App., infra, 22a, but instead was designed indefinitely to deny recognition to same-sex married couples for purposes of a wide array of federal statutes and programs, regardless of the content of state law.
The mismatch between Section 3’s stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals “not to further a proper legislative end but to make them unequal to everyone else.” Romer, 517 U.S. at 635; see 1996 House Report 15 n.53 (suggesting that “[m]aintaining a preferred societal status of heterosexual marriage” will “promot[e] heterosexuality”); id. at 16 (citing “a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”). Section 3 accordingly violates the guarantee of equal protection secured by the Fifth Amendment.
3. The First Circuit, like every other court of appeals that has addressed the issue to date, concluded in a prior case that classifications based on sexual orientation are subject to rational basis review, rather than the heightened scrutiny applicable to suspect or quasi-suspect classifications. See Cook v. Gates, 528 F.3d 42, 61 (2008), cert. denied, 556 U.S. 1289 (2009)). Neither Cook nor any other case has, however, offered an explanation for that

19
conclusion that withstands scrutiny under this Court’s precedents.4
The earliest court of appeals decisions addressing the issue simply assumed without explanation that gay and lesbian individuals are not a suspect or quasi-suspect class. See, e.g., Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence, supra; National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam).
Following this Court’s now-overruled decision upholding a state law criminalizing sodomy, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, supra, some courts of appeals relied on that holding to conclude that discrimination against gay and lesbian individuals is presumptively constitutional. Those courts reasoned that they could not “constitute either a ‘suspect class’ or a ‘quasi-suspect class’ ” if “the conduct which defined them as homosexuals was constitutionally proscribable.”
4 Cook and a number of cases in other circuits involved challenges to military policies on “homosexual conduct.” See 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays, 895 F.2d at 565; Ben- Shalom, 881 F.2d at 456; Woodward v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990). As a number of those courts have noted, because Congress’s authority to raise and support armies commands special judicial deference, classifications in the military context may present different questions from classifications in the civilian context. Rostker, 453 U.S. at 64-65, 70 (upholding male-only selective service registration against sex-discrimination challenge); see Goldman v. Weinberger, 475 U.S. 503, 507-509 (1986) (upholding military dress regulations barring the wearing of a yarmulke against First Amendment challenge); see also, e.g., Steffan, 41 F.3d at 685 (citing the “special deference” owed “to the ‘considered professional judgment’ of ‘appropriate military officials’ ”) (quoting Goldman, 475 U.S. at 509).

20 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998); accord Ben-Shalom, 881 F.2d at 464; Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); see also High Tech Gays, 895 F.2d at 570-571 (relying in part on Ben-Shalom, Woodward, and Padula to conclude that gay and lesbian individuals are not a suspect or quasisuspect class); cf. Lawrence, 539 U.S. at 575 (noting that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”). This Court’s decision in Lawrence contradicts that basic premise.
Some courts of appeals also reasoned that gay and lesbian individuals differ from previously recognized suspect and quasi-suspect classes in that members of such classes, “e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.” Woodward, 871 F.2d at 1076; accord High Tech Gays, 895 F.2d at 573. Subsequent decisions of this Court have undermined that reasoning. See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (noting that this Court’s cases have “declined to distinguish between status and conduct in this context”) (citing, inter alia, Lawrence, 539 U.S. at 575, and id. at 583 (O’Connor, J., concurring in the judgment)); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Some courts have further suggested that heightened constitutional protection against invidious discrimination is unnecessary because gay and lesbian individuals “have the ability to and do ‘attract the attention of the lawmakers,’ ” as evidenced by the passage of anti-discrimination

21 legislation in some States. High Tech Gays, 895 F.2d at 574 (citing, inter alia, Ben-Shalom, 881 F.2d at 466). But this Court has not considered the passage of antidiscrimination laws in some States—or even by the federal government—to eliminate the need for searching judicial review of other laws that disadvantage a protected class. On the contrary, the plurality opinion in Frontiero cited the enactment of federal protections against sex discrimination as bolstering the conclusion that sex-based classifications are inherently invidious and thus deserving of heightened constitutional scrutiny. See 411 U.S. at 687-688.
Finally, the most recent decisions applying rational basis review, including the First Circuit’s decision in Cook, have simply relied on other courts’ decisions, see Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases), cert. denied, 543 U.S. 1081 (2005), or on the fact that this Court “has never ruled that sexual orientation is a suspect classification for equal protection purposes,” even though the Court has never squarely confronted that question, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); accord Cook, 528 F.3d at 61. No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents.
4. Although the court of appeals in this case acknowledged that there is “[s]ome similarity” between the factors underlying this Court’s decision to extend heightened scrutiny to gender-based classifications and those applicable to sexual orientation classifications, it concluded that circuit precedent foreclosed extending heightened scrutiny to sexual orientation classifications. App., infra, 10a (citing Cook, supra). But while the court determined that Section 3 would survive “conventional rational basis review,” id. at 9a, 13a, it concluded that

22
Section 3’s effect on a minority group that has been politically unpopular and has suffered a long history of discrimination, reinforced by federalism concerns, warranted application of “closer than usual” review, id. at 7a, 14a-15a, 22a. Thus, rather than extend to Section 3 the “extreme deference accorded to ordinary economic legislation,” id. at 14a, the court below examined the purposes underlying the enactment of Section 3 and found an insufficient connection to any legitimate governmental end to justify denying federal benefits to same-sex couples who are legally married under state law.
As the court of appeals itself acknowledged, the proper approach for reviewing the constitutionality of Section 3 is a matter that only this Court can resolve. See App., infra, 7a (“We have done our best to discern the direction of [Supreme Court precedent], but only the Supreme Court can finally decide this unique case.”). This Court’s review is warranted to consider the important questions raised by the decision below.
C. Authoritative Resolution Of The Question Presented Is Of Great Public Importance
1. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have a substantial impact on the conduct of a wide array of Executive functions. As a result of the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution. Other cases challenging the constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and defin-

23 itive ruling on Section 3’s constitutionality is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
2. To help ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion, the government is also filing today a petition for a writ of certiorari before judgment in Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal pending, No. 12-15388 (9th Cir. filed Feb. 24, 2012) and No. 12-15409 (9th Cir. filed Feb. 28, 2012).
In Golinski, supra, the district court held that heightened scrutiny applies to classifications based on sexual orientation and that Section 3 fails that standard of review. In the alternative, the district court held that Section 3 is invalid under rational basis review. Golinski provides an appropriate vehicle for the Court to consider the constitutionality of Section 3.

24
CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys
JULY 2012

APPENDIX A UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF, APPELLEE v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS, APPELLANTS
Nos. 10-2207 & 10-2214 DEAN HARA, PLAINTIFF, APPELLEE/CROSS-APPELLANT, NANCY GILL, ET AL., PLAINTIFFS, APPELLEES, KEITH TONEY, ET AL., PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., DEFENDANTS, APPELLANTS/CROSS-APPELLEES, HILARY RODHAM CLINTON, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF STATE,
DEFENDANT
Filed: May 31, 2012
(1a)

2a APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before: LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
BOUDIN, Circuit Judge. These appeals present constitutional challenges to section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to same-sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23—which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)—the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision;1
1 E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

3a
many more states responded by banning same-sex marriage by statute or constitutional amendment.2
Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must—having only two operative paragraphs—be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines “marriage” for purposes of federal law:
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. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26
2 E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May 13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).

4a U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f ), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with samesex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of samesex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA’s opposite-sex marriage definition—such
3 U.S. Census Bureau, Census Bureau Releases Estimates of SameSex Married Couples (Sept. 27, 2011),http://www.census.gov/newsroom/ releases/archives/2010_census/cb11-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supptable-AFF.xls (last visited May 22, 2012).

5a
as Massachusetts’ state Medicaid program and veterans’ cemeteries.
By combining the income of individuals in same-sex marriages, Massachusetts’ Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal “veterans’ cemetery” status and gives the Department of Veterans’ Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth’s argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court’s judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification—discussed separately below—the federal defendants have throughout focused solely upon the district court’s premise that DOMA is unconstitutional.

6a
The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a “heightened scrutiny” standard and that DOMA failed under that standard. It opposed the separate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department’s about face while defense of the statute passed to a group of Republican leaders of the House of Representatives—the Bipartisan Legal Advisory Group (“the Legal Group”)—who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and “legislative facts” bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common knowledge. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess

7a
the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine—not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Following Baker,

8a
“gay rights” claims prevailed in several well known decisions, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996),4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving “suspect” classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications—race, alienage and national origin—require what the Court calls strict scrutiny, which entails both a compelling governmental in-
4 Lawrence struck down Texas’ statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny— applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.

9a terest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the “last resort of constitutional argument,” Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955), without regard to Congress’ actual motives. Beach Commc’ns, 508 U.S. at 314. Means need not be narrowly drawn to meet—or even be entirely consistent with—the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
5 United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).

10a
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the so-called intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined to create a major new category of “suspect classification” for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded “Don’t Ask, Don’t Tell” policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.

11a
However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions—not classic rational basis review—that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress’ decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation’s fit—finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a “bare congressional desire to harm a politically unpopular group.” Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as ap-

12a
plied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental disability too had no connection to alleged concerns about population density. All that remained were “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.” Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado’s constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling “unprecedented” the “disqualification of a class of persons from the right to seek specific protection from the law,” deemed the provision a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests.” Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this— both favorably, City of Cleburne, 473 U.S. at 451-55 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the circumstances of the case and not dependent

13a
entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential “rational basis” test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination. United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (citing City of Cleburne as an example). There is nothing remarkable about this: categories are often approximations and are themselves constructed by weighing of underlying elements. All three of the cited cases—Moreno, City of Cleburne and Romer—stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. As for burden, the combined effect of DOMA’s restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. For those married same-sex couples of which one partner is in federal service, the other cannot
6 E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).

14a
take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.
These burdens are comparable to those the Court found substantial in Moreno, City of Cleburne, and Romer. Moreno, like this case, involved meaningful economic benefits; City of Cleburne involved the opportunity to secure housing; Romer, the chance to secure equal protection of the laws on the same terms as other groups. Loss of survivor’s social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on “compelling” or “important” justifications or “narrow tailoring,” the Court would scrutinize with care the purported bases for the legislation. Before providing such scrutiny, a separate element absent in Moreno, City of Cleburne, and Romer—federalism—must be considered.
Federalism. In assailing DOMA, the plaintiffs and especially the Commonwealth rely directly on limitations attributed to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual

15a
scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)—Congress has provided its own definitions limited to the particular program or personnel involved. But no precedent exists for DOMA’s sweeping general “federal” definition of marriage for all federal statutes and programs. Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has

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traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the “germaneness” requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole, the Supreme Court upheld a condition by which federal funds for highway construction depended on a state’s adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spend-

17a
ing Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7 cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).
7 The majority, focusing on the related issue of fit, said that “a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating “because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.” Id. at 2520 (Thomas, J., concurring in part and dissenting in part).

18a
True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
DOMA’s Rationales. Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA, Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (“Hearing”), and none of the testimony concerned DOMA’s effects on the numerous federal programs at issue. Some of the odder consequences of DOMA testify to the speed with which it was adopted.8
The statute, only a few paragraphs in length, is devoid of the express prefatory findings commonly made in major federal laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400; 21 U.S.C. § 801; 29 U.S.C.
8 For example, DOMA’s definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on antinepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.

19a
§ 151; id. § 1001; 42 U.S.C. § 7401. Accordingly, in discerning and assessing Congress’ basis for DOMA our main resort is the House Committee report and, in lesser measure, to variations of its themes advanced in the briefs before us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to section 3—indeed, is antithetical to it—but was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality. First, starting with the most concrete of the cited reasons—“preserving scarce government resources”—it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more

20a
detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group’s brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
9 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/ default/files/cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf.
10 The House Report refers obliquely to the importance of heterosexual marriage in “encouraging responsible procreation and childrearing,” H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that “heterosexual marriage provides the ideal structure within which to beget and raise children.” Hearing, supra, at 1 (opening statement of Rep. Canady).

21a
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples—whose marriages may in any event be childless, unstable or both—or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA’s treatment of samesex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA’s stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian)morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality “morally wrong”). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have

22a
undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group’s brief that, faced with a prospective change in state marriage laws, Congress was entitled to “freeze” the situation and reflect. But the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report’s own arguments— moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court’s decision in Baehr, that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id. at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require

23a
somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as “mere moral disapproval of an excluded group,” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in

24a
court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara’s Health Benefits Claim. A distinct, if much narrower, issue is raised by Dean Hara, one of the Gill plaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).

25a
Hara was married under Massachusetts law to a now-deceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman’s Federal Employees’ Health Benefit Plan (“FEHBP”). For this, (1) Hara would have to be an eligible “annuitant” under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for “self and family,” which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management (“OPM”) had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board (“MSPB” or “Board”) and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now—as at the time the district court issued its judgment—a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara’s claim for FEHBP health enrollment because of the Congressman’s failure to elect “self and family” coverage. Although the district court found DOMA unconstitutional, it refused to

26a
resolve Hara’s health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.

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ADDENDUM SECTION. 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”. SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: “§ 1738C. Certain acts, records, and proceedings and the effect thereof
“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.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: “1738C. Certain acts, records, and proceedings and the effect thereof.”. SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

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“§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress,
or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: “7. Definition of ‘marriage’ and ‘spouse’.”

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APPENDIX B
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
MEMORANDUM
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically,
1 1 U.S.C. § 7. 2 Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J.

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Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA,
Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
3 Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4 In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996)

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which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, 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.6
In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being
6 1 U.S.C. § 7. 7 852 P.2d 44 (Haw. 1993). 8 See id. at 59-67. 9 Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside.

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waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.” 10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” 11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “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.12
In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, 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.” 14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the
10 Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”].
11 Id. at 10. 12 Id. at 2. 13 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.” 14 Id. at 25.

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definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.” 16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’ ” 17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.” 18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” 20 In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.” 21
In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion”
15 Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16 Id. at 3. 17 Id. at 12. 18 Id. 19 Id. at 13, 18. 20 Id. at 16 (footnote omitted). 21 142 CONG. REC. H7480 (daily ed. July 12, 1996).

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and “an attack upon God’s principles.” 22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.” 24
Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined,
22 142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith).
23 Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”).
24 Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).

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prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
1. Health Benefits Based on Federal Employment
Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employ-
25 House Report at 10-11. 26 Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-9716). 27 U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.

36a ees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program.
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses.
Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program
The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers
28 “Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B).
29 5 U.S.C. § 8905.

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must meet in order to offer coverage under the program.30
The Office of Personnel Management (“OPM”) administers the FEHB and is empowered to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,” 32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.” 33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . .” 37 An employee enrolled in the FEHB for
30 Id. §§ 8901-8914. 31 Id. §§ 8902, 8903, 8906. 32 Id. § 8913. 33 Id. 34 Id. § 8906. 35 Id. §§ 8905, 8906. 36 5 C.F.R. § 890.302(a)(1). 37 Id. § 8901(5).

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“self only” coverage may change to “self and family” coverage by submitting documentation to the employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.” 38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the
38 See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39 See 5 U.S.C. § 8901(3)(B). 40 5 C.F.R. § 890.303(c). 41 5 U.S.C. §§ 8951, 8952, 8981, 8982. 42 Id. §§ 8951, 8954, 8981, 8984.

39a FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.” 47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” 48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
43 Id. §§ 8952(a), 8953, 8982(a), 8983. 44 Id. §§ 8962(a), 8992(a). 45 Id. §§ 8958(a), 8988(a). 46 Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47 Id. § 894.201(c). 48 Id. 894.509(a), (b). 49 See 5 U.S.C. §§ 8951(2), 8991(2).

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C. Flexible Spending Arrangement Program50
A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits
The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent]
50 Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program.” Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
51 26 U.S.C. § 125. 52 See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53 Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 54 42 U.S.C. §§ 901, 902.

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provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.” 55
A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert Burtis seeks Widower’s Insurance Benefits.
A. Retirement Benefits The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].” 57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-
55 Id. § 405(a); see id.§ 902(a)(5). 56 Id. §§ 402, 413(a), 414, 415. 57 Id. § 402(b), (c).

42a Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.60
ii. Widower’s Insurance Benefit The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or selfemployment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
58 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male.
59 Id. §§ 402(I), 413(a), 414(a), (b). 60 Id. §§ 402(I), 415(a). 61 Id. §§ 402(f), 413(a), 414(a), (b). 62 Id. § 402(f)(1); see id.§ 402(f)(3).

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3. Filing Status Under the Internal Revenue Code
Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In
63 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
64 Id. § 6013(b)(1), (2). 65 Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008).

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granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68
B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits
As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact. . . . Second, there must be causation—a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 69 Where the plaintiff lacks standing to pursue his claim, the
67 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68 This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously. 69 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain
70 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 71 5 U.S.C. § 8905(b). 72 5 U.S.C. § 8347(b). 73 See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985). 74 The appeal, however, has been stayed pending the outcome of this action.

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ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annu-

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ity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a ceiling, to coverage eligibility. Plaintiffs assert, therefore, that
75 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.” 77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “ ‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” 78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.” 79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.” 80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot plausibly
76 5 C.F.R. § 890.302(a)(1) (emphasis added). 77 One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 78 5 U.S.C. § 8901(5) (emphasis added). 79 United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 80 1 U.S.C. § 7.

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interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” 83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’ ”84 And it is because of this “commitment to the law’s neutrality
81 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82 In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

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where the rights of persons are at stake” 85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.86
To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” 87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” 88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry—if it bears a rational relationship to a legitimate government interest.90
85 Romer, 517 U.S. at 623. 86 Id. 87 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88 Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89 Id. 90 Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.

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Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” 91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” 92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded
91 Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted).
92 Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted).

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a strong presumption of validity . . . [and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” 93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.” 95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” 96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].” 97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” 98 Importantly, the objective served by the law must be not only a proper arena
93 Id. (internal citations omitted). 94 Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted). 95 Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96 Romer, 517 U.S. at 633. 97 Id. 98 Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”).

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for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.” 100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 101 As such, a law must fail rational basis review where the “purported justifications . . . [make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.” 102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA
99 Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441).
100 Heller v. Doe, 509 U.S. 312, 321 (1993). 101 City of Cleburne, 473 U.S. at 447. 102 Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103 House Report at 12-18.

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does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 104
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the
104 City of Cleburne, 473 U.S. at 446. 105 See Def.’s Mem. Supp. Mot. Dismiss, 19 n.10. 106 Def.’s Mem. Supp. Mot. Dismiss, 19 n.10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy. aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http:// www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/ cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_ parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm).

55a time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” 107 when afforded equal recognition under federal law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA
107 Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108 See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting). 109 Id.

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effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” 112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean” 113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.” 114
110 Romer, 517 U.S. at 632-33. 111 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112 Id. 113 United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114 Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone).

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Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . . ” 115
And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.” 117 This court can discern no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cog-
115 Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
116 This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of samesex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages.
117 Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).

58a nizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation
Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation.
In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.
In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118 City of Cleburne, 473 U.S. at 448.

59a
For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges.
119 See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156JLT (D. Mass. July 8, 2010) (Tauro, J.).
120 See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).

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There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. This is especially true where a statute deals with a familiar relationship [because] there is no federal law of domestic relations.” 122
This conclusion is further bolstered by an examination of the federal government’s historical treatment of state marital status determinations.123 Marital eligibility for heterosexual couples has varied from state to state throughout the course of history. Indeed, pursuant to the sovereign power over family law granted to the states by virtue of the federalist system, as well as the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise,” 124 individual states have changed their marital eligibility requirements in myriad ways over time.125 And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as
121 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
122 DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted).
123 This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
124 United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring).
125 See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982).

61a
valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law.126
By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
126 See, e.g., Dunn v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3) (Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1( j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any statesanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127 See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967).

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The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.” 128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.130
128 Def.’s Reply Mem., 14. 129 See NANCY COTT, PUBLIC VOWS 163 (2000). 130 Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 61415 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id. at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view

63a
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 131 And the absence of precedent for the legislative classification at issue here is equally instructive, for “‘discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [C]onstitution[]. . . . ’ ” 132
The government is certainly correct in its assertion that the scope of a federal program is generally determined with reference to federal law. But the historically entrenched practice of incorporating state law determinations of marital status where they are relevant to federal law reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest
that, in the United States, for the most part, family law is state law. . . . Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).
132 Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

64a in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo
133 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010).

65a
might help to achieve. Staying the course is not an end in and of itself, but rather a means to an end. Even assuming for the sake of argument that DOMA succeeded in preserving the federal status quo, which this court has concluded that it did not, such assumption does nothing more than describe what DOMA does. It does not provide a justification for doing it. This court does not doubt that Congress occasionally encounters social problems best dealt with by preserving the status quo or adjusting national policy incrementally.134 But to assume that such a congressional response is appropriate requires a predicate assumption that there indeed exists a “problem” with which Congress must grapple.135
134 The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135 Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on

66a
The only “problem” that the government suggests DOMA might address is that of state-to-state inconsistencies in the distribution of federal marriage-based benefits. But the classification that DOMA effects does not bear any rational relationship to this asserted interest in consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the
national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
136 RSA 457:4-5.

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federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex
137 City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
138 See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications . . . made no sense in light of how the [government] treated other groups similarly situated”).

68a marriage” 139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws—that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal
139 Def.’s Mem. Opp. Summ. Judg., 16.

69a
that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
140 See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141 See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/ d04353r.pdf.
142 8 U.S.C. § 1430. 143 8 U.S.C. § 1186b(2)(A). 144 See 5 U.S.C. § 6382.

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It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” 146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” 147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern
145 See Heller, 509 U.S. at 319-20 (internal citations omitted). 146 Id . at 321. 147 Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).

71a a relationship to legitimate [government] interests.” 148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
148 Romer, 517 U.S. at 635. 149 Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).

72a IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
ORDER
TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that: 1. Defendants’ Motion to Dismiss [#20] is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant’s Motion to Dismiss [#20] is DENIED as to all claims, except Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED.

74a IT IS SO ORDERED.
/s/ [ILLEGIBLE] United States District Judge

75a
APPENDIX D
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
No. 1:09-cv-10309 JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: Aug. 17, 2010
AMENDED JUDGMENT
This action came on for a hearing before the Court on the Defendants’ Motion to Dismiss [#20] and Plaintiffs’ Motion for Summary Judgment [#25], and the issues having been duly heard and a Memorandum having been issued on July 8, 2010,
It is ORDERED AND ADJUDGED: The Plaintiffs’ Motion for Summary Judgment is ALLOWED and: (1) The rights of the Plaintiffs are declared as follows:

76a
(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), is unconstitutional as applied to the Plaintiffs by the Defendants in the administration and application of (1) the Federal Employees Health Benefits Program (“FEHB”), (2) the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), (3) the United States Postal Service Health Care Flexible Spending Account program (“Postal Service Health Care FSA”), (4) certain retirement and survivor benefit provisions of the Social Security Act, as set forth below, and (5) the Internal Revenue Code.
(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f ) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse,

77a
Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security LumpSum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management (“OPM”) is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 of DOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from “self only” to “self and family” so as to provide coverage for his spouse, Plaintiff James Fitzgerald;

78a
(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara’s application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
(b) to review the Plaintiff Jo Ann Whitehead’s application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, without regard to Section 3 of DOMA;
(c) to review the Plaintiff Randell LewisKendell’s application for the Social Security LumpSum Death Benefit without regard to Section 3 of DOMA; and
(d) to review the Plaintiff Herb Burtis’s application for the Social Security Lump-Sum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate pro-

79a
vided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054.
(b) For the taxable year ending December 31, 2005: $2,703.
(c) For the taxable year ending December 31, 2006: $4,390.
(d) For the taxable year ending December 31, 2007: $6,371.
(e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
(a) For the taxable year ending December 31, 2004: $4,687.
(b) For the taxable year ending December 31, 2005: $3,785.
(c) For the taxable year ending December 31, 2006: $5,546.

80a
(d) For the taxable year ending December 31, 2007: $5,697.
(e) For the taxable year ending December 31, 2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America:
(a) For the taxable year ending December 31, 2006: $1,286.
(b) For the taxable year ending December 31, 2007: $1,234.
(c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Defendants’ Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely

81a
on the Plaintiff Dean Hara’s claim for enrollment in the FEHB Program as a matter of standing.
JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties’ concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12, 2010 [#71].

ENTERED:

/s/ JOSEPH L. TAURO JOSEPH L. TAURO United States District Judge

82a
APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED
STATES OF AMERICA, DEFENDANTS
Filed: July 8, 2010
MEMORANDUM

83a
TAURO, J.: I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff ’s Motion for Summary Judgment [#26] is ALLOWED.3
1 1 U.S.C. § 7. 2 Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.” 3 In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

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II. Background4
A. The Defense of Marriage Act
Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 6
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Ac-
4 Defendants, with limited exception, concede the accuracy of Plaintiff ’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
6 1 U.S.C. § 7.

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counting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States
State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10
In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and
7 Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO04-353R).
8 Id. at 1. 9 Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10 Id. 11 Id., ¶ 10.

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protections of the federal Constitution) for the health, safety and welfare of their populations.” 12
In large part, rules and regulations regarding marriage corresponded with local circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.” 16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of consti-
12 Id. 13 Id. 14 Id. 15 Id., ¶ 14. 16 Id. 17 Id., ¶¶ 15, 18-19. 18 Id., ¶ 19.

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tutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.” 20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.” 21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status
19 Id . 20 Id. 21 Id. 22 Id. 23 See id ., ¶¶ 20-52. 24 Id .

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determinations for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.” 29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.” 31
25 Id ., ¶ 45. 26 Defs.’ Mem. Mot. Dismiss, 27. 27 See Cott Aff., ¶¶ 36, 44. 28 Id ., ¶ 35. 29 Id. 30 Id ., ¶ 37. 31 Id.

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In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from AfricanAmerican voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39
32 Id., ¶ 36. 33 Id . 34 Id ., ¶ 38. 35 Id. 36 Id. 37 Id ., ¶ 38. 38 Id., ¶ 43. 39 In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so

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Throughout this entire period, however, the federal government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts
In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.” 43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recogni-
directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40 Cott Aff., ¶ 45. 41 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42 Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43 Compl. ¶ 17. 44 Id ., ¶¶ 18-19. 45 Nyberg Aff., ¶¶ 6-7.

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tion of these marriages, the Commonwealth contends that the statute has a significant negative impact on the operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46 Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47 Id. 48 Id., ¶ 4. 49 Id ., ¶ 4. 50 Walls Aff., ¶ 8 (citations omitted). 51 Id .

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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.” 55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
52 Id ., ¶ 5. 53 Id ., ¶ 5. 54 Id ., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department . . .”)). 55 Id ., ¶ 6. 56 38 U.S.C. § 2408(c). 57 Walls Aff., ¶ 10.

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The VA regulations require that veterans’ cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children. . . .” 58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” 60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” 61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would
58 38 C.F.R. § 39.5(a). 59 Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services ( June 18, 2004). 60 Id. 61 Walls Aff., Ex. 2, NCA Directive 3210/1 ( June 4, 2008).

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not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.” 62
On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (13), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which rec-
62 Walls Aff., ¶ 20. 63 Walls Aff., Ex. 3, Copy of Approved Application. 64 Walls Aff., ¶ 22, Ex. 4, Marriage License. 65 Walls Aff., ¶ 23. 66 Id. 67 Id., ¶ 24. 68 Id., ¶ 25.

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ognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government, Thomas Hopkins is ineligible for burial in Winchendon.70
Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the Winchendon cemetery and intends to bury the couple together.71
2. MassHealth Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74 MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately onehalf of its Medicaid expenditures76 and administration
69 Id ., ¶ 26. 70 Id ., ¶ 26. 71 Id ., ¶¶ 21, 27. 72 Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73 Id. 74 Id., ¶¶ 2, 5. 75 Id., ¶ 5. 76 Id ., ¶ 7.

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costs.77 HHS provides MassHealth with billions of dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for
77 Id., ¶ 7. 78 Id., ¶ 6. 79 Id ., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report ( June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/ reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80 Id., ¶ 8. 81 Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82 Id., ¶ 9. 83 Id., ¶ 11. 84 Id., ¶ 14.

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Medicaid when assessed as single, even though they would qualify if assessed as married.85
The Commonwealth contends that, under certain circumstances, the recognition of same-sex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible.89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the
85 Id. 86 Id ., ¶ 11. 87 Id., ¶ 11. 88 Id., ¶ 11. 89 Id., ¶ 12. 90 Id., ¶ 12.

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$43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse earning $7,000 per year is eligible for Medicaid coverage.92
After the Commonwealth began recognizing samesex marriages in 2004, MassHealth sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.” 95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability
91 Id., ¶ 12. 92 Id ., ¶ 12. 93 Id ., ¶ 15. 94 Id ., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95 Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61.

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of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.” 96 In addition, CMS stated that “because same sex couples are not spouses under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.” 97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.” 98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
96 Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21, 2008).
97 Id. 98 Id. 99 Callahan Aff., ¶ 22. 100 Id., ¶ 23.

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3. Medicare Tax
Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing samesex marriages, and December 2009.107
101 Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26 C.F.R. § 1.106-1).
102 McHugh Aff., ¶ 4. 103 Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104 Id. 105 Id. 106 Id., ¶ 7. 107 Id ., ¶ 8.

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Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion
A. Summary Judgment
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
108 Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109 Id., ¶ 10. 110 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112 This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.

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B. Standing
This court first addresses the government’s contention that the Commonwealth lacks standing to bring certain claims against the VA and HHS.113
“The irreducible constitutional minimum of standing” hinges on a claimant’s ability to establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation—a fairly traceable connection between the plaintiff ’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.” 115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a
113 The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115 Defs.’ Mem. Mot. Dismiss, 32.

103a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarlysituated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication
116 See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007).

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that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely . . . speculative.” 117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” 119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 120 The division
117 Def.’s Mem. Mot. Dismiss, 34. 118 New York v. United States, 505 U.S. 144, 156 (1992). 119 United States v. Morrison, 529 U.S. 598, 607 (2000). 120 U.S. CONST. Amend. X.

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between state and federal powers delineated by the Constitution is not merely “formalistic.” 121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” 122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.” 124
Since, in essence, “the two inquiries are mirror images of each other,” 125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or
121 New York v. United States, 505 U.S. 144, 187 (1992). 122 Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123 Id . 124 New York, 505 U.S. at 155. 125 Id. at 156.

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more of its powers enumerated in the Constitution.” 126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.” 127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” 128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdic-
126 United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)).
127 United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
128 Morrison, 529 U.S. at 607. 129 See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause). 130 529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”). 131 United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce”).

107a tional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133 It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its
132 U.S. CONST. art. I, § 8. 133 Pl.’s Reply Mem., 3.

108a
spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.” 137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of
134 Arlington Cent. Sch. Dist. Bd . of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
135 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136 483 U.S. 203 (1987). 137 Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).

109a
Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” 138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to . . . legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ ” 139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” 140
In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process
138 Dole, 483 U.S. at 210. 139 Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140 Id. (internal citation omitted).

110a Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the samesex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal funding, this
141 Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).

111a
court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.” 142
A. DOMA Regulates the Commonwealth “as a State”
With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam
142 106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass’n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).

112a and Winchendon should the same-sex spouse of a veteran be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.” 144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and pa-
143 The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144 Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568).

113a
ternity,” 145 is often held out as the archetypal area of local concern.146
The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 148
145 Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).
146 See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147 Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).

114a
State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard their states’ areas of sovereign concern.
The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character.
That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded

115a
marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” 150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” 151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sover-
149 See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
150 529 U.S. at 615 (emphasis added). 151 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted).

116a
eignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.” 153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of statehood.
C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions
Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA
152 Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process.
153 Defs.’ Reply Mem., 5.

117a
would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.” 155 And, in
154 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’ ” were “abandon[ed] . . . as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
155 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 645-52

118a
view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.” 156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury samesex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an applica-
(2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156 New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.

119a
tion for the burial of Thomas Hopkins, the same-sex partner of Darrel Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on

120a the “core of sovereignty retained by the States,” 157 because “the Constitution . . . divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff ’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge
157 New York, 505 U.S. at 159. 158 Id. at 187.

121a APPENDIX F
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: July 8, 2010
ORDER

122a
TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

123a
APPENDIX G UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: Aug. 12, 2010
JUDGMENT

124a
TAURO, J.
Having allowed Plaintiffs Motion for Summary Judgment [#26], this court hereby enters the following judgment in this action:
1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

125a
APPENDIX H
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

 
 Nos. 12-13 & 12-15

IN THE
Supreme Cou_r_t_o_f__th__e_United States
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Petitioner, v.

NANCY GILL, ET AL., _____________

Respondents.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Petitioners, v.

COMMONWEALTH OF MASSACHUSETTS, ET AL., Respondents.
_____________

On Petitions for a Writ of Certiorari to the United States Court of Appeals for the First Circuit
_____________

BRIEF IN RESPONSE OF NANCY GILL ET AL. _____________

FOLEY HOAG LLP

GAY & LESBIAN ADVOCATES &

Claire Laporte

DEFENDERS

Ara B. Gershengorn

Gary D. Buseck

Matthew E. Miller

Mary L. Bonauto*

Catherine Deneke

Vickie L. Henry

155 Seaport Blvd.

Janson Wu

Boston, MA 02210

30 Winter Street, Suite 800

(617) 832-1000

Boston, MA 02108

SULLIVAN & WORCESTER LLP David J. Nagle

(617) 426-1350 mbonauto@glad.org

Richard L. Jones

JENNER & BLOCK LLP

One Post Office Square

Paul M. Smith

Boston, MA 02109

Luke C. Platzer

(617) 338-2800

Matthew J. Dunne

*Counsel of Record

Melissa A. Cox 1099 New York Ave, NW, Suite 900

Washington, DC 20001

(202) 639-6000

COUNSEL FOR RESPONDENTS NANCY GILL, ET AL.

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act defines “marriage” for purposes of all federal statutes, regulations, and agency interpretations as the union of one man and one woman and defines “spouse” as a husband or wife of someone of the opposite sex. 1 U.S.C. § 7. As a result, with respect to more than 1,100 federal statutes, lawfully married same-sex couples are denied the benefits and responsibilities accorded to lawfully married opposite-sex couples.
The question presented is:
Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

ii
PARTIES TO THE PROCEEDING
The Respondents are Nancy Gill and Marcelle Letourneau, Martin Koski and James Fitzgerald, Dean Hara, Mary Ritchie and Kathleen Bush, Melba Abreu and Beatrice Hernandez, Marlin Nabors and Jonathan Knight, Mary Bowe-Shulman and Dorene Bowe-Shulman, Jo Ann Whitehead and Bette Jo Green, Randall Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the U.S. House of Representatives was an intervenor in the court below and is a Petitioner here.
Separate Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
The Commonwealth of Massachusetts was also an Appellee in the court below and is a Respondent in this Court.

iii TABLE OF CONTENTS
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ............................ii
TABLE OF AUTHORITIES.......................................vi
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 1
A. DOMA’s Enactment. .............................. 2
B. Respondents Suffer From Their Disparate Treatment Under DOMA..................................................... 6
C. Procedural Background And The Opinions Below. ................................... 12
REASON FOR GRANTING THE WRIT .................. 16
I. There Is No Dispute That This Case Raises Questions Of National Importance That Are Ripe For Review. ......... 16
II. The First Circuit Faithfully Applied This Court’s Rational Basis Precedents To Invalidate Section 3 Of DOMA. ................ 18

iv
A. The First Circuit Correctly Recognized The Importance Of Context In Rational Basis Analysis. ............................................... 18

B. The First Circuit Correctly

Identified

Federalism

Considerations As Further

Meriting Careful Review. .................... 20

C. The First Circuit’s Application Of Rational Basis Review Followed Well-Established Principles. ............... 23

D. DOMA Can Be Explained Only By Impermissible Disapproval And Exclusion Of Gay Men And Lesbians. .............................................. 29

III. This Court Should Decide Whether Heightened Scrutiny Applies To Discrimination On The Basis Of Sexual Orientation...................................................... 31

v
A. The Two Essential Factors (Historical Discrimination And Contribution To Society) Are Easily Satisfied. ................................... 34

B. Gay Men And Lesbians Are A Minority And Face Significant Obstacles To Winning Political Protections Democratically.................. 35

C. Sexual Orientation Is An

Enduring

And

Defining

Characteristic....................................... 37

CONCLUSION .......................................................... 39

CASES

vi TABLE OF AUTHORITIES

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959)................................................. 22
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).............. 3 Baker v. Nelson, 409 U.S. 810 (1972)................... 17 Board of Trustees of University of Alabama
v. Garrett, 531 U.S. 356 (2001) ................. 28, 30 Bond v. United States, 131 S. Ct 2355
(2011)................................................................ 22 Bowen v. Gilliard, 483 U.S. 587 (1987) .......... 34, 37 Bowers v. Hardwick, 478 U.S. 186 (1986),
overruled by, Lawrence v. Texas, 539 U.S. 558 (2003)................................................. 32 Christian Legal Society of the University of California v. Martinez, 130 S. Ct. 2971 (2010)................................................................ 37 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)...... 14, 18, 19, 20, 27, 31, 33 De Sylva v. Ballentine, 351 U.S. 570 (1956) .......... 2 Ensminger v. Commissioner, 610 F.2d 189 (4th Cir. 1979) .................................................... 3 Frontiero v. Richardson, 411 U.S. 677 (1973).................................................... 16, 35, 37 High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) .................................................. 32

vii Kerrigan v. Commissioner of Public Health,
957 A.2d 407 (Conn. 2008) ........................ 36, 38 Lawrence v. Texas, 539 U.S. 558
(2003)........................................ 26, 31, 32, 33, 34 Lofton v. Security of Department of
Children & Family Services, 358 F.3d 804 (11th Cir. 2004) ......................................... 32 Lyng v. Castillo, 477 U.S. 635 (1986) ................... 34 Moore v. City of East Cleveland, 431 U.S. 494 (1977)......................................................... 33 Nashville, Chattanooga & St. Louis Railway v. Walters, 294 U.S. 405 (1935)....................... 24 National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)................................................................ 22 Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009).......................................................... 14, 21 Nyquist v. Mauclet, 432 U.S. 1 (1977) ................. 37 Palmore v. Sidoti, 466 U.S. 429 (1984) .......... 15, 26 Pedersen v. Office of Personnel Management, No. 3:10-cv-1750 (D. Conn. July 31, 2012)................................................... 31 Plyler v. Doe, 457 U.S. 202 (1982) ...... 15, 20, 24, 34 Romer v. Evans, 517 U.S. 620 (1996) ........... passim Stanley v. Illinois, 405 U.S. 645 (1972) ................ 33

viii Steffan v. Perry, 41 F.3d 677 (D.C. Cir.
1994) ................................................................. 32 United States v. Carolene Products Co., 304
U.S. 144 (1938)................................................. 24 United States v. Lopez, 514 U.S. 549 (1995) . 14, 21 United States v. Morrison, 529 U.S. 598
(2000).......................................................... 14, 21 United States v. Virginia¸ 518 U.S. 515
(1996)................................................................ 33 United States Department of Agriculture v.
Moreno, 413 U.S. 528 (1973) ... 14, 18, 19, 20, 30 United States Railroad Retirement Board v.
Fritz, 449 U.S. 166 (1980) ............................... 30 Watkins v. United States Army, 875 F.2d
699 (9th Cir. 1989) ........................................... 38 STATUTES
18 U.S.C. § 2333 ...................................................... 6 Act of Oct. 31, 1951, ch. 655, § 1, 65 Stat.
710 ...................................................................... 6 Defense of Marriage Act, Pub. L. No. 104-
199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ........................................................... 2 5 C.F.R. § 831.613(e)(1)(v) .................................... 28 5 C.F.R. § 842.605(e)(1)(v) .................................... 28 5 C.F.R. § 1651.5(b)............................................... 28 20 C.F.R. § 10.415 ................................................. 28 20 C.F.R. § 219.32 ................................................. 28

ix 20 C.F.R. § 222.11 ................................................. 28 20 C.F.R. § 222.13 ................................................. 28 20 C.F.R. § 404.345 ............................................... 28 20 C.F.R. § 404.726 ............................................... 28 28 C.F.R. § 32.3 ..................................................... 28 29 C.F.R. § 825.113 ............................................... 28 38 C.F.R. § 3.1(j).................................................... 28 LEGISLATIVE MATERIALS 142 Cong. Rec. 16,799 (1996).................................. 5 142 Cong. Rec. 16,972 (1996).................................. 5 142 Cong. Rec. 17,074 (1996).................................. 5 142 Cong. Rec. 17,082 (1996).................................. 5 142 Cong. Rec. 17,089 (1996).................................. 4 142 Cong. Rec. 22,334 (1996).................................. 5 H.R. Rep. No. 104-664 (1996), reprinted in
1996 U.S.C.C.A.N. 2905 .......................... 4, 5, 29 OTHER AUTHORITIES
Nancy Cott, Public Vows (2000) ............................. 2 I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6,
1990) ................................................................... 3 Social Security Ruling 84-18: Validity of
Marriage - Estoppel – Ohio ............................. 28 Social Security Ruling 63-20 - Validity of
Marriage Between First Cousins .................... 28

x U.S. General Accountability Office, GAO-
04-353R, Defense of Marriage Act: Update to Prior Report (2004)........................... 6 U.S. General Accountability Office, GAO/OGC-97-16, Defense of Marriage Act (1997) ........................................................... 6

INTRODUCTION
Respondents Nancy Gill et al., the individual plaintiffs in Gill v. Office of Personnel Management, submit this response to the petitions for certiorari filed by the Bipartisan Legal Advisory Group (“BLAG”) (No. 12-13) and by the federal defendants (No. 12-15). Respondents agree that the issues presented are of great importance and require definitive resolution by this Court. However, the Court should not, in weighing whether to grant review, be persuaded by the distorted analysis of the merits of the case that BLAG presents in its petition. The First Circuit faithfully applied this Court’s precedents concerning rational basis scrutiny in deciding that Section 3 of the Defense of Marriage Act violates the equal protection guarantee by selectively denying any federal recognition to legally valid marriages simply because the married couples are of the same sex. Moreover, unlike the First Circuit (which believed itself constrained by circuitlevel precedent), this Court is free to recognize that such overt discrimination against a class defined by its members’ sexual orientation requires heightened equal protection scrutiny. While the statute does not survive even rational basis review, application of heightened scrutiny will provide prospective clarity to lower courts.
STATEMENT
Nancy Gill and the other 16 Respondents are all lawfully married or widowed. They exercise all of the rights and discharge all of the responsibilities of married (or widowed) people in Massachusetts.

2
Their marriages, however, are excluded from any federal recognition by Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”). DOMA for the first and only time in history establishes a federal definition of “marriage” and “spouse.” While Massachusetts treats the Gill Respondents and all other same-sex married couples identically to their opposite-sex married counterparts, DOMA takes the class of married persons and divides it in two: those who are married for federal purposes and those whose marriages do not exist for any federal purpose.
A. DOMA’s Enactment.
From the founding of this country until DOMA’s enactment in 1996, the states governed marriage. State laws have always differed as to eligibility, including the age of consent, permissibility of interracial marriages, permissible degrees of consanguinity, availability of divorce, and recognition of common law marriages. Such conflicts sometimes led to “explosive” debates among the States. See, e.g., Nancy Cott, Public Vows 163 (2000).
The federal government never inserted itself into these debates by defining any dimension of marital eligibility for all federal purposes. Instead, it looked to the relevant state’s definition of marriage: a couple that was married under the law of the state was married under federal law. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“The scope of a federal right is . . . a federal question, but that does not mean that its content is not to be determined by

3
state, rather than federal law . . . This is especially true where a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.”); Appendix to Petition for a Writ of Certiorari filed by U.S. Department of Health and Human Services, et al. (“DOJ App.”) at 64a (“In 1996 . . . . the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law.”) (emphasis in original).
The federal government maintained this deference to state law notwithstanding wide diversity in the benefits available to couples. As the Fourth Circuit explained in Ensminger v. Comm’r, 610 F.2d 189 (4th Cir. 1979), the diversity:
produces some inequality in taxation, but it illustrates the deference Congress has demonstrated for state laws in this area and its attempts to insure that, in the application of federal tax laws, taxpayers will be treated in their intimate and personal relationships as the state in which they reside treats them.
Id. at 191, accord I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990).
In 1996, Congress disrupted this centuries-old status quo by passing DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which raised the possibility that same-sex couples could soon begin marrying. The House Judiciary Committee’s Report on DOMA warned that “a redefinition of marriage in Hawaii to

4
include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” H.R. Rep. No. 104-664, at 10-11 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15 (“House Report”).
The House Report acknowledged that “[t]he determination of who may marry in the United States is uniquely a function of state law,” id., at 3, reprinted in 1996 U.S.C.C.A.N. at 2907, but stated that the Committee was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’” id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916, and claimed Congressional interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging responsible procreation and child-rearing,” conserving scarce resources, and reflecting Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12, 13, 16, reprinted in 1996 U.S.C.C.A.N. at 2916, 2917, 2920 (footnote omitted).
The remarks of Representative Hyde, thenChairman of the House Judiciary Committee, were blunt but typical: “[M]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law . . . . It is . . . the only way possible to express this disapprobation.” 142 Cong. Rec. 17,089 (1996). In the floor debate on DOMA, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and

5
“an attack on God’s principles.” See id. at 16,972 (statement of Rep. Coburn); id. at 17,074 (statement of Rep. Buyer); id. at 17,082 (statement of Rep. Smith). They argued that marriage by gay men and lesbians might be “the final blow to the American family.” Id. at 16,799 (statement of Rep. Largent). Senator Helms stated:
[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle – these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . . Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.
Id. at 22,334.
Although DOMA amended the eligibility criteria for a vast number of benefits, rights, and privileges dependent upon marital status, the relevant Congressional committees did not engage in any meaningful examination of the scope or effect of the law. Neither chamber of Congress heard testimony from economists, historians, sociologists or specialists in child welfare. Congress did not solicit relevant agency heads or endeavor in any other way to understand the scope of the Act. Indeed, the House Report characterized Section 3 as a “narrow federal requirement.” H.R. Rep. 104-664 at 30, reprinted in 1996 U.S.C.C.A.N. at 2935.

6
But DOMA neither was nor is “narrow.” Since its passage, DOMA has implicated more than 1,100 federal statutory provisions, extending from Social Security to taxation and health care, from employee benefits to terrorism victim recovery. See, e.g., U.S. General Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report (2004); U.S. General Accountability Office, GAO/OGC-97-16, Defense of Marriage Act (1997); see also 18 U.S.C. § 2333.
Not surprisingly, defining a term for the entirety of the United States Code is uncommon, and at the time of DOMA, no new definitions had been added to the Dictionary Act, and the existing definitions had not been amended, for nearly half a century. See Act of Oct. 31, 1951, ch. 655, § 1, 65 Stat. 710 (substituting “used” for “use” in fourth clause after opening clause of 1 U.S.C. § 1).
B. Respondents Suffer From Their Disparate Treatment Under DOMA.
DOMA compels all federal agencies to disregard the lawful marriages entered into by each of the Respondents, most of whom married after decadeslong dedicated relationships. As a class-based enactment, DOMA is a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law. This “adds stress and confusion to everyday situations,” “complicate[s] even ordinary transactions,” is “upsetting and painful” on an individual level, makes the Respondents “feel like . . . fractured famil[ies],” “conveys disrespect for [their] marriage[s] to the

7
wider world,” and signals “that others do not have to respect” the Respondents’ marriages.1
For the seventeen Respondents in the Gill case, there is no dispute that DOMA, and only DOMA, denies them equal access to particular federal programs.2 DOMA concretely and continuously harms them and their children. The record reveals the following harms:
Nancy Gill and Marcelle Letourneau: Nancy Gill, a long-serving employee of the U.S. Post Office, and Marcelle Letourneau, a nursing services administrator, have been a couple since 1980 and married since 2004. Nancy sought to add Marcelle to her federal health insurance coverage, vision benefit plan, and flexible spending account, as do other federal employees for their spouses, but she was denied these protections because of DOMA.3 Although the couple’s two children are covered under Nancy’s Federal Employee Health Benefit Program (FEHB) plan, Marcelle has had to remain in the work force to maintain access to her own health
1 The quotations are taken from unrebutted Affidavits from the Individual Plaintiffs (now Respondents) in Support of their Motion for Summary Judgment. Further undisputed facts are drawn from the Second Amended Complaint.
2 See nn. 3-7 infra.
3 Nancy first sought FEHB coverage for her spouse in 2004, which was denied. When she attempted to re-apply for benefits in 2008, the Postal Ease system would not accept her entries, and agency staff confirmed that DOMA foreclosed her application.

8 insurance and has been unable to fulfill their family’s dream of having her stay at home with their two children.
Martin Koski and James Fitzgerald: Martin “Al” Koski, a retired employee of the Social Security Administration, and James “Jim” Fitzgerald, a recovery aide at a treatment center, have been life partners since 1975 and married since 2007. In their nearly 40 years together, they have suffered through grave health problems and the illnesses and deaths of parents. Although Al is otherwise qualified, DOMA required OPM to deny Al’s application to enroll his spouse in the FEHB plan.4 As a result, Al and Jim have incurred additional insurance expenses, prescription costs and uninsured medical expenses.
Herbert Burtis: Herbert “Herb” Burtis and his late husband John Ferris were both musicians and music teachers who were together for 60 years and married in 2004. Herb cared for John during the 16year period in which John suffered from Parkinson’s Disease, serving as his principal advocate and caregiver. The Social Security Administration’s treatment of Herb after John’s death in August 2008—mandated by DOMA—only compounded Herb’s grief by treating him differently and denying him both the “One Time Lump-Sum Death Benefit
4 Al’s application for benefits and request for reconsideration were both denied by OPM because of DOMA.

9
and the survivor benefit because DOMA required that his spouse be a woman and not a man.5
Randell Lewis-Kendell: For 30 years, Randell “Randy” Lewis-Kendell, a shop owner, was partnered with his now-deceased husband, Robert LewisKendell, whom he married in 2004. In 1993, they moved to Cape Cod and opened a small gift shop. In 2002, Robert was diagnosed with cancer. When Robert passed away in 2007, Randy repeatedly contacted the company holding his deceased husband’s mortgage but the company refused to speak with him because it did not understand his marriage. The federal government’s rejection of Randy’s legal marriage pursuant to DOMA under which Randy has been denied the Lump-Sum Death Benefit reinforced this general lack of understanding.
Dean T. Hara: Dean Hara, a financial planner, is the surviving spouse of Gerry Studds, a former Member of the United States Congress who retired from federal service in January 1997. Dean and Gerry became a couple in 1991 and married in 2004. When Gerry died unexpectedly in 2006, Dean, too,
5 All of the Respondents with Social Security-based claims applied for and were denied benefits. Herb was denied both the “One-Time Lump-Sum Death Benefit” and the Social Security survivor benefit. Herb, as well as Randell Lewis-Kendell and Jo Ann Whitehead, all contested the denial of the benefits for which they applied within the Social Security Administration. The agency has stipulated that the sole issue precluding benefits is DOMA, the statute whose constitutionality is questioned.

10
was denied the Lump-Sum Death Benefit from Social Security due to DOMA. Dean was also denied both FEHB health insurance and the annuity normally available to surviving spouses. As a result, he has been forced to incur significant costs, not incurred by other widowed spouses of Members of Congress, to purchase his own insurance.6
Bette Jo Green and Jo Ann Whitehead: Bette Jo Green and Jo Ann Whitehead have been together since 1981, were married in 2004, and have seen each other through their own illnesses with cancer and the deaths of family members. As a retired labor and delivery nurse, Bette Jo’s income has exceeded that of Jo Ann, a garden educator. Both receive primary insurance benefits from Social Security based on their own work records, but because of DOMA, Jo Ann has been denied the “spousal benefit” otherwise available to a lower-earning spouse. Unlike other married couples, both women are also extremely concerned about Jo Ann’s likely financial circumstances should Bette Jo, a two-time cancer survivor, predecease her and Jo Ann be denied the Social Security spousal survivor benefit because of DOMA.
Melba Abreu and Beatrice Hernandez: Melba Abreu, the chief financial officer of a Boston-area nonprofit organization, and Beatrice Hernandez, a
6 The constitutionality of DOMA, as applied to Dean’s claims for a spousal annuity and health insurance, has been the subject of administrative proceedings. An appeal from those proceedings is pending but stayed in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. Oct. 15, 2010).

11
writer developing a web design business, have been a committed couple since 1987. Since marrying in 2004, they have filed their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly, but unlike other married couples, they are forbidden by DOMA from doing so for their federal income tax returns. Because they filed their federal returns as “single,” they have borne a higher aggregate tax burden and been compelled to misrepresent their marital status.
Mary Ritchie and Kathleen Bush: Mary Ritchie, a longtime Massachusetts State Trooper and now State Police Lieutenant, and Kathleen Bush, a former sales and marketing worker at a medical journal, have been a committed couple since 1990 and were married in 2004. Kathleen temporarily set aside her career once they had children because of the demands of Mary’s job. She currently stays home with their children and volunteers in their school and community. Because of DOMA, Mary has been unable to contribute to a “spousal IRA” for Kathleen, who is currently earning no income. The couple has also incurred additional federal income tax for every year since their marriage due to both their inability to file jointly and Mary’s inability to contribute to Kathleen’s IRA.
Mary and Dorene Bowe-Shulman: Mary BoweShulman, an attorney employed by the Commonwealth of Massachusetts, and Dorene BoweShulman, a self-employed acupuncturist, have been together since 1996 and have two daughters. In 2004, they were legally married. As a married

12
couple, they receive health insurance provided through Mary’s employment with the Commonwealth, but because of DOMA, the couple has been forced to pay federal income taxes on Dorene’s benefits. Mary’s co-workers who are married to spouses of the opposite sex do not pay this tax penalty. Mary and Dorene have also been unable to file jointly. Both circumstances have resulted in their paying higher taxes than other similarly situated married families with children.
Marlin Nabors and Jonathan Knight: Marlin Nabors, a college administrator, and Jonathan Knight, a university finance administrator, have been a couple since 2004. In 2006, they “reached a point in [their] relationship when [they] knew that [they] would be together for life, no matter what,” and so they “solidif[ied their] commitment through marriage.” They, too, have been required by DOMA to file their federal income tax returns as “single” and have paid higher federal income taxes for several years than if they had filed as “married filing jointly.” Like all of the plaintiffs, they simply want their marriage “to be treated like any other” and if, down the road, they “would owe more money as a married couple, then [they] would want to pay that amount. [They] want to pay [their] fair share.”
C. Procedural Background And The Opinions Below.
Respondents filed their Complaint in the District Court of Massachusetts on March 3, 2009, alleging that DOMA’s discrimination among married couples violates the equal protection guarantee of the Fifth

13
Amendment to the Constitution. Gill v. Office of Personnel Management, et al., 1:09-cv-10309, Dkt. No. 1. The Office of Personnel Management and other Defendants moved to dismiss and Respondents (Gill, et al.) moved for summary judgment. See DOJ App. at 44a n. 68.
The district court issued its decision on July 8, 2010, granting the motion for summary judgment, denying the government’s motion to dismiss, and holding that DOMA violates the Fifth Amendment. Id. at 29a, 72a. The court held that “‘there exists no fairly conceivable set of facts that could ground a rational relationship’ between DOMA and a legitimate government objective.” Id. at 51a (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005)). An appeal was filed to the U.S. Court of Appeals for the First Circuit.
In early 2011, the President and Attorney General notified Congress of their conclusion that DOMA violates the equal protection guarantee of the Fifth Amendment. See App. E to BLAG Petition for Writ of Certiorari. The Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) subsequently moved to intervene, which the First Circuit permitted. See DOJ App. at 6a. Following briefing and extensive amicus participation, the First Circuit on May 31, 2012, affirmed the district court’s holding. See id. at 26a.
Writing for a unanimous panel, Judge Boudin concluded that “[u]nder current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts

14
has not been adequately supported by any permissible federal interest.” Id. at 24a. The Court stated that the burdens suffered by the 17 Respondents were akin to those suffered by the plaintiffs in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996). DOJ App. at 14a. Applying rational basis review as the Court did in those cases, the First Circuit held that DOMA did not survive such review. Id. at 22a23a.
The First Circuit also noted that DOMA intruded upon an area of governance typically reserved for the states: “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.” Id. at 17a-18a (relying upon, inter alia, Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995)). The court held that DOMA did not survive this closer rational basis examination.
The First Circuit held that neither the reasons offered in the House Report nor any subsequently offered justifications were sufficient to justify DOMA. Id. As to the “moral disapproval of homosexuality,” the First Circuit held that “Lawrence and Romer have undercut this basis.”

15
DOJ App. 21a-22a (citing, inter alia, Palmore v. Sidoti, 466 U.S. 429, 433 (1984)).
As to preserving government resources, the court held that saving money by targeting one particular and historically disadvantaged class of people actually undermines rather than bolsters a legitimate justification under this Court’s precedents. See DOJ App. at 19a-20a (citing Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635).
And as to the proposed justifications related to child-rearing and heterosexual marriage, the First Circuit held that: (1) DOMA cannot prevent samesex couples in Massachusetts from adopting or “prevent a woman partner from giving birth to a child to be raised by both partners”; (2) DOMA does not increase benefits to opposite-sex married couples; (3) DOMA does not explain how “denying benefits to same-sex couples will reinforce heterosexual marriage”; and (4) “[c]ertainly the denial [of such benefits] will not affect the gender choices of those seeking marriage.” DOJ App. at 20a-21a. Accordingly, the court held:
This is not merely a matter of poor fit of remedy to perceived problem . . . but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
Id. at 21a (citations omitted).

16
The First Circuit noted Petitioner’s argument that Congress, “faced with a prospective change in state marriage laws” in 1996, was “entitled to ‘freeze’ the situation and reflect,” id. at 22a, but held that the statute was “not framed as a temporary timeout,” and the House Report’s “own arguments – moral, prudential and fiscal – make clear that DOMA was not framed as a temporary measure,” id.
At both the district court and appellate levels, Respondents argued that legislation that discriminated against gay men and lesbians should be afforded heightened scrutiny. Neither court addressed whether gays and lesbians met the criteria meriting such heightened scrutiny. See e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). The district court determined it need not address these arguments because it concluded that “DOMA fails to pass constitutional muster even under the highly deferential rational basis test.” DOJ App. at 51a. The First Circuit believed that it was bound by prior Circuit precedent, see id. (interpreting Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)), and resolved the case on rational basis review.
REASON FOR GRANTING THE WRIT
I. There Is No Dispute That This Case Raises Questions Of National Importance That Are Ripe For Review.
As both BLAG and the government argue, BLAG Pet. 17-22; DOJ Pet. 22-23, this case raises questions of national importance. The denial of federal recognition of marriages mandated by Section 3 of DOMA sweeps across an “unprecedented number of

17
statutes,” BLAG Pet. 19; see DOJ Pet. 22, affecting a great number of people. As the First Circuit noted, more than 100,000 existing married same-sex couples are disadvantaged in myriad ways, DOJ App. 4a, and the statute makes federal rights and benefits unavailable to countless others who may marry and form families in the future.7 Furthermore, as Petitioners note, this Court has long recognized the importance of review where decisions strike down federal statutes. BLAG Pet. 17-18; DOJ Pet 13-14.
For these reasons, the arguments for a grant of review in this case are strong. In weighing them, however, the Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition. As discussed in the following section, there is no validity to the claim that the First Circuit somehow distorted equal protection jurisprudence in concluding that DOMA fails rational basis scrutiny.
7 While BLAG agrees that this case presents important questions, it argues that the constitutionality of DOMA is already decided by Baker v. Nelson, 409 U.S. 810 (1972). BLAG Pet. 24. Leaving aside the question of whether Baker still retains any precedential value (a proposition Respondents dispute), Baker is irrelevant here. Baker hinged on whether there is a constitutional right to marry. DOJ App 2a. That question is not at issue in this case, which asks instead whether the federal government can discriminate against a class of people who are already married. These questions do not require the same, or even similar, analyses because the federal government has no interest in licensing marriages. The fact that affected couples, including Respondents, are (or were) already married alters the constitutional analysis. The court below distinguished Baker on precisely these grounds. DOJ App 7a-8a.

18
To the contrary, as multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.
II. The First Circuit Faithfully Applied This Court’s Rational Basis Precedents To Invalidate Section 3 Of DOMA.
BLAG devotes much of its Petition to arguing the merits of the case, contending that the First Circuit erred by “inventing and applying to [DOMA] . . . a previously unknown standard of equal protection review.” BLAG Pet. i (Question Presented No. 2); see id. at 28-34. This does not accurately characterize the First Circuit’s holding or analysis. The court of appeals did not “invent” a new standard of review but rather applied this Court’s rational basis holdings in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1985), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1973), and Romer v. Evans, 517 U.S. 620 (1996). The First Circuit’s unanimous decision that DOMA cannot withstand application of those precedents is faithful to this Court’s jurisprudence and should be affirmed.
A. The First Circuit Correctly Recognized The Importance Of Context In Rational Basis Analysis.
In Moreno, Cleburne, and Romer, the First Circuit noted, the Court has not afforded the “extreme deference accorded to ordinary economic legislation.” DOJ App. 14a. Although those

19
decisions “did not adopt some new category of suspect classification,” they analyzed, in applying the rational basis test, “the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” DOJ App. 12a (emphasis added). As discussed in Part II.C infra, the First Circuit correctly analyzed DOMA, and the justifications advanced on its behalf, using precisely such an analysis.
Based on the First Circuit’s recognition that this Court’s precedents do not apply some one-size-fits-all rational basis review but rather apply rational basis review with sensitivity to the context in which the cases arise, BLAG accuses the First Circuit of “deviat[ing] from settled law,” BLAG Pet. 18 and “inventing” a new form of equal protection review. Id. at 26. Not so.
At the outset, BLAG overstates the extent to which the First Circuit differentiated between the approach in Moreno, Cleburne, and Romer and the “extreme deference accorded to ordinary economic legislation.” DOJ App. 14a. It did so only with respect to one claimed interest – the Congressional goal of preserving fiscal resources and the means for accomplishing said goal – noting that courts are normally highly deferential to such objectives, yet this Court’s rational basis cases insist that there be a rational connection between a statute and cost cutting where an unpopular group bears the burden. The fact that Moreno involved federal funds, for instance, did not automatically warrant complete deference to the decision to deny those funds to

20
group households. When it comes to cutting costs, the government must justify its choice of a particular group to bear the burden of cuts. See Plyler v. Doe, 457 U.S. 202, 227 (1987).
The First Circuit’s acknowledgment of this principle does not represent a departure from “traditional” or “conventional” rational basis review, BLAG Pet. at 30, but simply a recognition that the application of rational basis review is contextdependent. While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a statusbased enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts for discrimination against a disfavored group.
B. The First Circuit Correctly Identified Federalism Considerations As Further Meriting Careful Review.
BLAG further errs by arguing that the First Circuit’s decision adopted a “new standard of review as a fusion of federalism and equal protection concerns.” BLAG Pet. 15. At the outset, this is not

21
an accurate description of the First Circuit’s holding: the Court identified both the “disparate impact on minority interests” and “federalism concerns” as each independently meriting “somewhat more in this case than automatic deference to Congress’ will.” DOJ App. 22-23a.
The First Circuit was in any event correct that this Court’s “precedent[s] relating to federalismbased challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications.” Id. at 14a-15a (emphasis added). As the First Circuit noted, this Court has scrutinized with special care federal statutes that intrude on areas customarily within state control. See, e.g., United States v. Morrison, 529 U.S. 598, 612-613 (2000) (closely scrutinizing federal interests in statute imposing upon police powers); United States v. Lopez, 514 U.S. 549 (1995) (same); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (state election processes). Because DOMA represents an unprecedented attempt to create a federal standard with respect to a marital feature, the First Circuit rightly considered DOMA’s departure from federalist tradition as similarly meriting careful consideration of the statute’s constitutionality. See DOJ. App. 14a-18a.
While BLAG questions the First Circuit’s reliance on federalism to inform its equal protection analysis because “the Constitution’s equal protection guarantees exist to constrain government action, not to protect the states,” BLAG Pet. 32-33, this Court has repeatedly recognized that federalism also

22
protects individuals, see, e.g., Bond v. United States, 131 S. Ct. 2355, 2363-64 (2011) (an “individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines”), and “secures to citizens the liberties that derive from the diffusion of sovereign power,” Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (quoting New York v. United States, 505 U.S. 144, 181 (1992)). See also id. (“[F]ederalism protects the liberty of the individual from arbitrary power.”) (quoting Bond, 131 S. Ct. at 2364)); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 532 (1959) (Brennan, J., concurring) (“[T]he Equal Protection Clause, among its other roles, operates to maintain this principle of federalism . . . . [and] as an instrument of federalism.”).
The First Circuit’s consideration of federalism to inform the equal protection analysis therefore flows logically from this Court’s precedents. The enactment of DOMA as a federal marriage standard is a historical anomaly, given the states’ traditional role in regulating marital relationships, and as this Court noted in Romer, “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). See also Sebelius, 132 S. Ct. at 2586 (“Sometimes the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent for Congress’s action.”) (internal quotation marks omitted; alterations in original).

23
The First Circuit did not, therefore, invent some novel equal protection standard as BLAG charges, but rather faithfully analyzed this Court’s precedents and properly identified DOMA’s historically anomalous nature as meriting careful application of the rational basis standard.
C. The First Circuit’s Application Of Rational Basis Review Followed Well-Established Principles.
The rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review. The First Circuit evaluated each of the four contemporaneous rationales for DOMA articulated in the House Report: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-government; and (4) preserving scarce government resources,” H.R. Rep. 104-664, at 12, reprinted in 1996 U.S.C.C.A.N. at 2916 (1996), as well as additional post hoc rationales posited by BLAG, such as “to support child-rearing in the context of stable marriage,” “reinforc[ing] heterosexual marriage,” and reacting to a “prospective change in state marriage laws.” DOJ App. at 22a. The First Circuit’s analysis and rejection of each rationale tracks this Court’s approach.
Notwithstanding BLAG’s incorrect assertion that the First Circuit “recognized expressly that DOMA

24
passes the rational basis test,” BLAG Pet. 14, the only rationale where the First Circuit indicated that “the extreme deference accorded to ordinary economic legislation” would otherwise suffice to sustain DOMA is the “public fisc” rationale. See DOJ App. at 9a. Both the First Circuit and the district court below rejected the “public fisc” rationale, DOJ App. 19a-20a; 57a-58a, and rightly so. This Court has made clear that a mere desire to conserve resources cannot explain a distinction drawn against a historically disadvantaged group. See Plyler, 457 U.S. at 219-21, 227; Romer, 517 U.S. at 635.8 The First Circuit correctly recognized that saving money is not enough – rational basis review also requires a justification for choosing a particular unpopular group or minority to bear the burden of cost cutting. See DOJ App. at 19a-20a.
Congress’s family-law-based justifications (as augmented by BLAG’s post hoc arguments, which the First Circuit considered as well) fare no better. BLAG argued below that DOMA is a way to support child-rearing in the context of heterosexual
8 Recent analysis also shows that DOMA costs rather than saves money. DOJ App. at 19a-20a. Irrespective of what a hypothetical Congress might have thought at the time, such facts negate the “public fisc” rationale. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 153 (1938) (“[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”); Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 415 (1935) (“A statute valid when enacted may become invalid by change in the conditions to which it is applied.”).

25
marriage. But there is no rational contention that discriminating against same-sex married couples supports parenting by opposite-sex couples: federal rights and benefits that support childbearing do so whether or not the government discriminates against same-sex couples.
Moreover, DOMA is not focused on childbearing. The laws DOMA rewrote apply to, benefit, and burden married couples without regard to whether they have, intend to have, or are capable of having children. These laws simply bear no relationship to encouraging marriage by unwed future parents.
The First Circuit (and the district court) thus correctly rejected Congress’s family-law-based justifications. As the First Circuit panel explained, DOMA does not increase benefits to opposite-sex couples—“whose marriages may in any event be childless, unstable, or both.” DOJ App. 21a. Nor can anyone “explain how discriminating against samesex couples will reinforce heterosexual marriage.” Id. Certainly there is no reason to believe that DOMA will affect one’s marital or procreative choices. As such, “[t]his is not merely a matter of poor fit of remedy to a perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.” Id. (internal citations omitted) (citing Lee Optical, 348 U.S. at 487-88 and Cleburne, 473 U.S. at 446-50); see also DOJ Pet. 55a56a (explaining that Congress’s “asserted interest in defending and nurturing heterosexual marriage is

26
not grounded in sufficient factual context . . . to ascertain some relation between it and the classification DOMA effects”) (internal quotation marks omitted) (quoting Romer, 517 U.S. at 632-33)). Again, the First Circuit’s analysis tracks neatly this Court’s longstanding doctrine that laws “so far removed from” their justifications that it is “impossible to credit them” cannot survive rational basis scrutiny. Romer, 517 U.S. at 635.
The First Circuit likewise correctly recognized that under this Court’s precedent, Congress’s next proffered rationale, moral disapproval of homosexuality, is equally flawed. That rationale, as both the First Circuit and the district court below recognized, has been foreclosed by this Court’s decisions in Lawrence and Romer, which counsel that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law.” Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1996) (Stevens, J., dissenting)); see also DOJ App. 21a-22a; 57a; cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Equally unavailing is BLAG’s argument, also asserted below, that DOMA furthers a federal interest in “national uniformity” in the substantive definition of marriage. Again, this rationale bears no recognizable relationship to the statute: DOMA does not create uniform eligibility for federal benefits. As the district court below noted, every variation of state marriage laws remains incorporated in federal

27
law for heterosexual couples; it is only same-sex couples who are affected by DOMA. DOJ App. 60a61a. Platitudes like “uniformity” do not explain the legitimacy of this choice to separate out gay men and lesbians for differential treatment.
At best, DOMA treats identically situated married couples (same-sex and opposite-sex) differently in order to treat all same-sex couples (married and unmarried) the same. But that purpose is hardly legitimate. This Court’s equal protection jurisprudence requires that similarly situated persons receive the same treatment. Cleburne, 473 U.S. at 439. Treating legally married same-sex couples differently from identically situated, legally married opposite-sex couples solely to equalize the treatment of married and unmarried same-sex couples turns that principle on its head.
BLAG failed below to offer any legitimate argument why the federal government has any policy interest in equalizing the federal legal status of all same-sex couples irrespective of their actual marital status. The need to administer federal programs certainly cannot provide it. As the district court aptly noted, “distribut[ing] federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses . . . . does not become more administratively complex simply because some of those couples are of the same sex.” DOJ Pet. App. 68a. Nor is the fact that some samesex married couples might move to other states a reasonable rationale for discriminating against them when they have not done so: federal agencies must

28
often address complicated differences among the domestic relations laws of the states in determining opposite-sex couples’ eligibility for federal benefits,9 including the challenging task of determining the validity of common-law marriages,10 and they routinely apply residency determinations in administering federal programs.11 Any suggestion that federal agencies would be unable to make comparable determinations for married same-sex couples is not believable, and a refusal to undertake the same administrative processing for same-sex couples that the federal government frequently undertakes for opposite-sex couples in similar circumstances is not legitimate. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (measure will fail rational basis review where “purported justifications . . . made no sense in light of how the city treated other groups similarly situated in relevant respects”). The First Circuit’s and
9 See, e.g., Social Security Ruling (“SSR”) 84-18: Validity of Marriage - Estoppel – Ohio (applying law of claimant’s state of residence to determine marital status, where law of state where marriage was performed would have yielded contrary result); SSR 63-20 - Validity of Marriage Between First Cousins (same).
10 See, e.g., 5 C.F.R. §§ 831.613(e)(1)(v), 842.605(e)(1)(v), 1651.5(b); 20 C.F.R. §§ 10.415, 219.32, 222.13, 404.726; 28 C.F.R. § 32.3 (definition of “spouse”).
11 See, e.g., 29 C.F.R. § 825.113 (marriage for FMLA purposes turns on law of state in which employee resides); 20 C.F.R. § 404.345 (marriage for Social Security benefit eligibility turns on location of permanent home at time of benefits application); 38 C.F.R. § 3.1(j) (veterans’ benefits); 20 C.F.R. § 222.11 (Railroad Retirement Act).

29
district court’s refusal to entertain this rationale, therefore, again faithfully applies this Court’s precedents.12
D. DOMA Can Be Explained Only By Impermissible Disapproval And Exclusion Of Gay Men And Lesbians.
The First Circuit declined to opine as to Congress’s objective in enacting DOMA, determining that the statute was unconstitutionally irrational without attributing impermissible motives to the Congress who enacted it. However, the lack of any rational explanation for the statute leads to the conclusion that Congress intended DOMA to do exactly what Congress said it intended to do – to reflect “moral disapproval of homosexuality.” H.R. Rep. 104-664 at 15-16, reprinted in 1996 U.S.C.C.A.N. at 2919-20.
This purpose is clear on the face of the House Report. Id. It also pervades the Congressional Record, which was uniquely filled with open hostility to gay men and lesbians (the sheer volume of those statements belying BLAG’s attempt to dismiss them as isolated or incidental). And it is also the only explanation for DOMA that makes any sense because, as discussed supra, none of the other
12 Equally unassailable is the First Circuit’s dismissal of any interest in reacting to a “prospective change in state marriage laws” by temporarily preserving the status quo so that Congress could “reflect.” DOJ. App. at 22a. The court rightly noted the lack of any rational connection between this supposed rationale and the permanent ban on recognition of marriages among same-sex couples effected by DOMA. Id.

30
reasons for the statute, whether stated or invented after-the-fact, is plausible.
This does not mean, as BLAG simplistically characterized Respondents’ position below, that all of DOMA’s supporters harbored animosity towards gay men and lesbians – although, as the Congressional Record shows, quite a few obviously did. As Justices Kennedy and O’Connor noted in Garrett, impermissible prejudice is not limited to “malice or hostile animus alone,” but also includes more subtle, yet still harmful “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
Whether animated by “moral disapproval” toward gay men and lesbians, open hostility, “insensitivity” to the lives of the people against whom they were discriminating, or simply a reaction against people who “appear[ed] to be different,” Congress enacted a statute whose object was to subject gay men and lesbians to different, and less-favorable, treatment. Cf. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 180-81 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). This Congress may not do. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534;

31

Cleburne, 473 U.S. at 448. Similarly, “[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582 (citing Moreno 413 U.S. at 534; Romer, 517 U.S. at 634-35). Congress’s stated desire to condemn gays and lesbians cannot provide a legally sufficient basis for DOMA.

III. This Court Should Decide Whether

Heightened

Scrutiny

Applies

To

Discrimination On The Basis Of Sexual

Orientation.

As detailed above, the First Circuit correctly held, as have several other lower courts, that DOMA cannot be sustained under rational basis review, and its holding can be affirmed on that basis. If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation. As the government argues, DOJ Pet. 16-22, DOMA effects a classification requiring, and failing, heightened scrutiny under the factors this Court has identified
in cases involving other classifications.13

13 Just this week, the court in Pedersen v. Office of Personnel Management, No. 3:10-cv-1750 (D. Conn. July 31, 2012), exhaustively considered whether heightened scrutiny should apply to a classification based on sexual orientation in a challenge to DOMA, including BLAG's contentions to the contrary, and concluded that it should.

32
This Court has been able to resolve past cases involving discrimination against gay men and lesbians without needing to decide the level of scrutiny that applies to such laws. See Lawrence; Romer. In the absence of such guidance from this Court, several lower courts have addressed the question, in many cases concluding that heightened scrutiny is not warranted as a result of Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by, Lawrence v. Texas, 539 U.S. 558 (2003). See, e.g., Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc) (“[I]f the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a ‘suspect class’.”); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (“[H]omosexual conduct is not a fundamental right.”) (citing Bowers); see also Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (en banc) (citing cases from several Circuits all decided in 1997 or earlier). While this Court overruled Bowers, Lawrence, 539 U.S. at 578, and the premise underlying these cases is now void, this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination. Because DOMA imposes indisputable de jure discrimination on the basis of sexual orientation, this case presents an ideal vehicle for this Court to clarify how courts should scrutinize such laws going forward, and to

33
ensure that lower courts afford gay men and lesbians the constitutional protections to which they are entitled under a proper application of the Equal Protection Clause.14
This Court has made clear that a classification triggers heightened scrutiny where (1) a group has suffered a history of invidious discrimination; and (2) the characteristics that distinguish the group’s members bear no relation to their ability to contribute to society. See Cleburne, 473 U.S. at 44041; United States v. Virginia¸ 518 U.S. 515, 531-32 (1996). While these two factors are essential, this Court has also sometimes considered (3) the group’s minority status or relative lack of political power, see
14 As Respondents will demonstrate if the Court grants review, DOMA also independently warrants heightened scrutiny because it burdens the right of familial integrity for married same-sex couples and their families. The right to maintain family relationships free from undue government interference is a long-established and fundamental liberty interest. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (acknowledging “freedom of personal choice in matters of marriage and family life”); Stanley v. Illinois, 405 U.S. 645, 65152 (1972); Lawrence, 539 U.S. at 574 (confirming that “persons in a homosexual relationship may [also] seek autonomy” for “personal decisions relating to marriage, procreation, . . . . family relationships, child rearing, and education”). DOMA infringes this liberty interest. First, by its sweeping reclassification of Respondents as “single” for any and all federal purposes, DOMA erases their marriages under federal law. Second, by throwing Respondents’ marriages into a confusing legal status in which they “count” for some purposes but not others, DOMA erases much of the meaning their marriages would otherwise have – in both public and private settings – and relegates them to second-class status.

34
Plyler, 457 U.S. at 216 n.14; Lyng v. Castillo, 477 U.S. 635, 638 (1986) (“minority or politically powerless”) (emphasis added), and (4) whether group members have “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987).
DOJ offers compelling arguments, supported by the undisputed record evidence set forth in the district court, that discrimination based on sexual orientation satisfies these criteria. DOJ Pet. 18-21. The First Circuit, while noting “[s]ome similarity” between sexual orientation and gender discrimination which receives heightened scrutiny, believed itself foreclosed by Circuit precedent from extending heightened scrutiny to sexual orientation. DOJ App. 10a. This Court faces no similar constraint and can and should take that step.
A. The Two Essential Factors (Historical Discrimination And Contribution To Society) Are Easily Satisfied.
There can be no dispute that gay men and lesbians have historically been subject to discrimination. Lawrence, 539 U.S. at 571 (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral.”). There also can be no legitimate dispute that they participate fully in society. Respondents in this case, and millions of other gay men and lesbians, are woven into the fabric of everyday life in America, leading productive lives as spouses, parents, family members, friends, neighbors, coworkers, and

35
citizens. For these reasons alone, laws that discriminate on the basis of sexual orientation merit heightened scrutiny.
B. Gay Men And Lesbians Are A Minority And Face Significant Obstacles To Winning Political Protections Democratically.
As noted, the Court has sometimes also considered whether a group is a minority or lacks political power.15 Both criteria are satisfied here.
First, there is no dispute that gay men and lesbians are a minority. Second, gay men and lesbians remain politically vulnerable to the majoritarian political process. Below, Respondents submitted unrebutted evidence showing that the modest political successes won by gay men and lesbians (which BLAG highlights while ignoring the extensive contrary evidentiary record developed in this case) do not change the fact that they still lack sufficient political power to end discrimination targeting them. For example, while hate crime legislation has been enacted, and “Don’t Ask, Don’t Tell” has been repealed, basic civil rights for gay men and lesbians have proved impossible to achieve despite decades of effort and despite popular support: there is no national law prohibiting discrimination in employment, housing, or public accommodation on
15 This Court has applied heightened scrutiny absent this factor. See. e.g., Frontiero, 411 U.S. at 686 n.17 (heightened protection for sex-based classifications despite acknowledgment that “women do not constitute a small and powerless minority”).

36
the basis of sexual orientation. See generally Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 452 (Conn. 2008). Gay men and lesbians remain underrepresented in elected office. Id. at 446-47. And legislative and judicial decisions to expand civil rights for gay men and lesbians are disproportionately reversed by ballot initiatives, including marriage in California and foster care rights in Arkansas. Non-discrimination protections are also subject to repeal (e.g., in Anchorage, Alaska in 2012) and many states are attempting to emulate Tennessee’s law forbidding local governments from enacting non-discrimination measures that protect characteristics not enumerated in state antidiscrimination laws. Finally, anti-equality groups are powerful, numerous, and well funded. Id. at 44546.
DOMA itself is emblematic of the limited political power exercised by gay men and lesbians and illustrates the setbacks that typically accompany any gains. After the President and Attorney General of the United States concluded that DOMA was unconstitutional, powerful political interests still rushed to defend it.
In short, gay men and lesbians are ordinarily unable to win political protections through the democratic process, especially on the national level. Contrary to BLAG’s contention, BLAG Pet. 29 n.9, the limited successes achieved so far do not evidence substantial political power, any more than women’s limited political gains obviated the need for heightened scrutiny of gender-based classifications

37

in the 1970s. See Frontiero, 411 U.S. at 687-88 (acknowledging Civil Rights Act prohibiting employment discrimination based on sex, Equal Pay Act, and Congressional passage of Equal Rights Amendment).

C. Sexual Orientation Is An Enduring And Defining Characteristic.

Although not necessary to trigger heightened

scrutiny, see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11

(1977) (resident aliens are suspect class

notwithstanding ability to opt out of class

voluntarily), the Court has also been particularly

suspicious of laws that discriminate based on

“obvious,

immutable,

or

distinguishing

characteristics that define [persons] as a discrete

group.” Bowen, 483 U.S. at 602. This stems from

the “basic concept of our system that legal burdens

should bear some relationship to individual

responsibility.” Frontiero, 411 U.S. at 686 (quotation

marks omitted). A law therefore warrants

heightened scrutiny where it imposes a disability

based on a characteristic that persons cannot, or

should not be asked to, change.

While some would incorrectly characterize the status defining gay men and lesbians as one of behavior only and therefore mutable, this Court has “declined to distinguish between status and conduct in this context.” Christian Legal Society of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010). Moreover, Lawrence recognized that individual decisions by consenting adults concerning the intimacies of their physical relationships represent

38
“an integral part of human freedom,” 539 U.S. at 576-77, and are entitled to constitutional protection, see id. at 578. Given that (1) the purpose of the immutability inquiry is to assess whether a person can reasonably change a characteristic to avoid discrimination, and (2) the acknowledged centrality of sexual orientation to a person’s identity, it would be unjust to ask gay men and lesbians to choose between their identity and the civil rights available to heterosexuals. See, e.g., Kerrigan, 957 A.2d at 438 (this prong of inquiry satisfied where “it would be abhorrent for government to penalize a person for refusing to change” trait) (quotation marks omitted).
Moreover, there is an increasingly broad scientific consensus that sexual orientation is, in fact, immutable, as evidenced by affidavits submitted below. See Kerrigan, 957 A.2d at 436-37; Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in the judgment) (“Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.”).

39 CONCLUSION The Court should grant review and affirm.
Respectfully submitted,

FOLEY HOAG LLP Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
SULLIVAN & WORCESTER LLP David J. Nagle Richard L. Jones One Post Office Square Boston, MA 02109 (617) 338-2800
August 2, 2012

GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
JENNER & BLOCK LLP Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox 1099 New York Ave., NW Suite 900 Washington, DC 20001
*Counsel of Record

 
 No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
Respondents who were plaintiffs below are the Commonwealth of Massachusetts, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary Bowe-Shulman, Dorene Bowe-Shulman, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened in the court of appeals to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and statutory provisions involved . . . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 11
A. This Court’s review is warranted because the court of appeals invalidated an Act of Congress . . . . . 13
B. The decision below raises important questions of federal law that should be settled by this Court . . . . . 14
C. Authoritative resolution of the question presented is of great public importance . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Appendix A – Opinion of the court of appeals
(May 31, 2012) . . . . . . . . . . . . . . . . . . . . . . . 1a Appendix B – Opinion of the district court, Gill v.
Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 29a Appendix C – Order of the district court, Gill v. Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 73a Appendix D – Amended judgment of the district court, Gill v. Office of Personnel Management (Aug. 17, 2010) . . . . . . . . . . . . . . . . . . . . . . 75a Appendix E – Opinion of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 82a Appendix F – Order of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . 121a Appendix G – Judgment of the district court, Massachusetts v. United States Department of Health & Human Services (Aug. 12, 2010) . . . . 123a
(III)

IV

Table of Contents—Continued:

Page

Appendix H – Constitutional and statutory provisions . . . . . . . . . . . . . . . . . . . . . . . . . 125a

Cases:

TABLE OF AUTHORITIES

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 14
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . 3
Baker v. Nelson:
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . . . 8
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) . . . . . . . . . 16, 19, 20, 21
Blodgett v. Holden, 275 U.S. 142 (1927) . . . . . . . . . . . . . . . 14
Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . 14
Bowen v. Gilliard, 483 U.S. 587 (1987) . . . . . . . . . . . . . . . . 16
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . 19
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . . . . 20
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . 9, 14, 15, 16, 17

V

Cases—Continued:

Page

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . 15
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009) . . . . . . . . 6, 9, 18, 19, 21
Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . 13
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998) . . . . . . . . . . . . . . . . . . . 20
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) . . . . . 15
Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 21
Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . . . . . . . . 3
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . 19
Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . 14
Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . 17
Heller v. Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . 6
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . 16, 19, 20, 21
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . 12
Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . 10, 16, 17, 20
Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 542 U.S. 1081 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006) . . . . . . . . . . . . . . . . . . . . 5

VI

Cases—Continued:

Page

National Gay Task Force v. Board of Educ., 729 F.2d 1270 (10th Cir. 1984), aff ’d by an equally divided court, 470 U.S. 903 (1985) . . . . . . . . . . . . . . . . . . 19
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. . . . . . . . . . . . . . . . . 12
Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) . . . . . . . . 20
Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . . 13
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997) . . . . . . . . . . . . . . . . . . . 19
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . 9, 16, 18
Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . 14, 19
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) . . . . . . . 14
South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . 5
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) . . . . . . . . . . 19
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996) . . . . . . . . . . . . . . . . . . . 19
United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 14
United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . 14
United States v. Stevens, 130 S. Ct. 1577 (2010) . . . . . . . . 14
United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 15 United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . 14 United States Dep’t of Agric. v. Moreno, 413 U.S. 528
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII

Cases—Continued:

Page

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . 13
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) . . . . . . . . . 19, 20

Constitution, statutes and rule:

U.S. Const.: Art. I, § 8, Cl. 1 (Spending Clause) . . . . . . . . . . . . . . . 5, 10 Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8, 11, 18 Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . 2, 11 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . . passim
5 U.S.C. 8901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. 106 (2006 & Supp IV 2010) . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 42 U.S.C. 402(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 402(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 17, 18
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/ opa/pr/ 2011/February/11-ag-223.html . . . . . . . . . . 6, 7, 12

VIII

Miscellaneous—Continued:

Page

U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/new.items/ d04353r.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

In the Supreme Court of the United States
No. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS v.
COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States Department of Health and Human Services et al., respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a28a) is not yet reported but is available at 2012 WL 1948017. The opinion of the district court in Gill v. Office of Personnel Management (App., infra, 29a-72a) is reported at 699 F. Supp. 2d 374. The opinion of the district court in Massachusetts v. United States Depart-
(1)

2
ment of Health & Human Services (App., infra, 82a120a) is reported at 698 F. Supp. 2d 234.
JURISDICTION
The judgment of the court of appeals was entered on May 31, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 125a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only

3
to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including respondent Massachusetts, have since recognized such marriages under their respective laws. See App., infra, 2a-3a nn.1-2; Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that recognize them, it excludes all such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/ new.items/d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18; App., infra, 3a-4a, 13a-14a. 2. a. The individual respondents are seven same-sex couples married in Massachusetts and three surviving spouses of same-sex couples married in Massachusetts. They filed suit in the United States District Court for the District of Massachusetts, alleging that, as a result

4 of Section 3, they had been denied certain federal benefits otherwise available to married couples or surviving spouses, including federal health plan benefits for spouses of federal employees, see 5 U.S.C. 8901 et seq.; social security benefits for surviving spouses of insured individuals, see 42 U.S.C. 402(f) and (i), and benefits based on the earnings record of a spouse; and the ability to file federal income tax returns as married joint filers or to exclude the value of employer-provided health insurance coverage for a spouse from federally taxable income, see 26 U.S.C. 106 (2006 & Supp. IV 2010). Second Am. Compl. ¶¶ 67-413, Gill v. Office of Pers. Mgmt., No. 1:09-cv-10309 (D. Mass. May 25, 2010); see App., infra, 4a, 10a. They contended that Section 3 violates the right of equal protection secured by the Fifth Amendment and sought to enjoin Section 3’s enforcement, as well as other relief. Ibid.
Respondent Massachusetts filed a separate action challenging the constitutionality of Section 3 of DOMA. Massachusetts alleged that, as a result of Section 3, it would risk loss of federal funding if it treated legally married same-sex couples as married for purposes of determining eligibility for participation in the State’s Medicaid program or for burial as a spouse of a veteran in a veterans’ cemetery funded in part by federal grants. Compl. ¶¶ 46-79, Massachusetts v. United States Dep’t of Health & Human Servs., No. 1:09-cv-11156 (D. Mass. July 8, 2009); see App., infra, 4a-5a. Massachusetts contended that Section 3 violates the Tenth Amendment and principles of federalism and the Spending Clause as applied to the Medicaid and State Cemetery Grants Program. Massachusetts sought to enjoin enforcement of Section 3, as well as other relief. Compl. ¶¶ 80-100, Massachusetts, supra.
b. In separate opinions issued on the same day, the district court held Section 3 of DOMA unconstitutional

5 and entered judgment against petitioners. App., infra, 29a-72a, 75a-81a. Ruling in favor of the individual respondents in Gill, the court concluded that Section 3 violates the Fifth Amendment’s equal protection guarantee. Without addressing respondents’ argument that Section 3 should be subject to strict constitutional scrutiny, the district court concluded that Section 3 “fails to pass constitutional muster even under the highly deferential rational basis test,” id. at 51a, because “ ‘there exists no fairly conceivable set of facts that could ground a rational relationship’” between the classification employed in DOMA Section 3 “and a legitimate government objective,” ibid. (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006)); see id. at 51a-71a.
In a separate opinion, the district court ruled in favor of Massachusetts on its action. App., infra, 82a-120a. The court concluded that Section 3 violates the Spending Clause because it impermissibly “induce[s] the States to engage in activities that would themselves be unconstitutional” by conditioning federal funds on the denial of marriage-based benefits to legally married same-sex couples without a rational basis for the differential treatment. Id. at 108a (quoting South Dakota v. Dole, 483 U.S. 203, 210 (1987)). The court further concluded that Section 3 violates the Tenth Amendment because it “plainly intrudes on a core area of state sovereignty— the ability to define the marital status of its citizens.” Id. at 111a.
The district court enjoined petitioners from enforcing Section 3, but stayed its order pending appeal. App., infra, 5a.
3. The government appealed in both cases, and the cases were consolidated in the court of appeals. In its opening brief, the government explained that binding First Circuit precedent holds that classifications based

6 on sexual orientation are subject to rational basis review, rather than the more searching review applicable to constitutionally suspect or quasi-suspect classifications such as race, national origin, gender, or illegitimacy. Gov’t Initial C.A. Br. 25-26 (citing Cook v. Gates, 528 F.3d 42, 60, 62 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009)). Pointing to this Court’s cases holding that a classification subject to rational basis review “must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 27 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)), the government argued that Section 3 satisfies that “highly deferential” standard, id. at 26, 29-55.
After the government filed its opening brief in this case, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (Attorney General Letter).1 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the rele-
1 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

7 vance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
After the Attorney General’s letter, the government informed the First Circuit that it would no longer defend the constitutionality of Section 3 and sought to withdraw its opening brief. The court of appeals denied the government’s motion but permitted the government to file a superseding brief. 6/16/11 Order 2. The government thereafter filed a superseding brief in the court of appeals in which it set forth its view that Section 3 is unconstitutional under heightened scrutiny. The government argued that the legislative purposes motivating

8 the enactment of Section 3, as articulated in the 1996 House Report, are insufficient to justify the exclusion of same-sex couples legally married in their States from federal benefits available to other married couples. See Gov’t Superseding C.A. Br. 22-23.
Respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.2 The court of appeals granted the motion. 6/16/11 Order 2.
4. The individual respondents petitioned for initial hearing en banc. The court of appeals denied the petition, with three judges dissenting. A panel of the court of appeals then affirmed the judgment of the district court in part, holding DOMA Section 3 invalid under the equal protection component of the Fifth Amendment. App., infra, 1a-28a.
At the outset, the court of appeals distinguished the question at issue in this case from the question whether a State constitutionally may choose to limit marriage to persons of the opposite sex. App., infra, 7a-8a; see also id. at 23a-24a. The court thus rejected BLAG’s threshold argument that “any equal protection challenge to DOMA is foreclosed” by this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision upholding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, see Baker v. Nelson, 191 N.W.2d 185, 185187 (1971). App., infra, 7a. The court of appeals reasoned that because Baker concerned a different question, the Court’s summary dismissal cannot resolve this
2 Two of the group’s five members declined to support intervention. BLAG C.A. Mot. to Intervene 1 n.1 (May 20, 2011).

9 case. Id. at 8a. In the court’s view, however, Baker “does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Ibid.
To evaluate the constitutionality of Section 3, the court concluded that it was bound by its precedent to apply rational basis review. App., infra, 10a (citing Cook, supra). The court determined that Section 3’s challengers could not prevail under what it termed “classic rational basis review,” id. at 11a—i.e., “rational basis review as conventionally applied in routine matters of commercial, tax and like regulation,” id. at 9a—under which “[c]ourts accept as adequate any plausible factual basis” for a law that distinguishes between different groups of people, “without regard to Congress’ actual motives” or to whether Congress’s chosen means are “entirely consistent with” its legislative ends, ibid.
The court of appeals concluded, however, that Section 3 warrants more searching review than “the extreme deference accorded to ordinary economic legislation.” App., infra, 14a. The court of appeals relied for that conclusion on cases in which this Court has “struck down state or local enactments without invoking any suspect classification” where “the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.” Id. at 11a-12a (citing United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996)). The court of appeals noted that, in each of those cases, the Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute” and “undert[ook] a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review,” id. at 13a, focusing on “the case-specific

10 nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered,” id. at 12a. The court of appeals concluded that Section 3 warrants similarly careful review because “gays and lesbians have long been the subject of discrimination,” id. at 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)), and because Section 3 imposes substantial burdens on married same-sex couples by precluding access to “medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country,” id. at 14a.
In the court of appeals’ view, that analysis “is uniquely reinforced by federalism concerns.” App., infra, 18a. The court concluded that, while “neither the Tenth Amendment nor the Spending Clause invalidates DOMA,” id. at 14a, Section 3 represents a broad intrusion on the States’ historic powers to regulate domestic relations, and, as such, warrants more searching examination of the purported bases for the legislation, id. at 14a-18a.
The court of appeals concluded that the rationales for Section 3, as reflected in the 1996 House Report and amplified in briefing, are insufficient to justify the statute’s burden on same-sex married couples. App., infra, 18a-24a. The court reasoned that neither a desire to “preserv[e] scarce government resources” nor to express moral disapproval, without more, justifies differential treatment of “a historically disadvantaged group,” id. at 19a-20a. It further reasoned that Section 3 lacks “any demonstrated connection” to a statutory purpose of “support[ing] child-rearing in the context of stable marriage” or of promoting heterosexual marriage, since Section 3 neither precludes same-sex couples in Massachusetts from raising children nor “affect[s] the gender choices of those seeking marriage” in that State. Id. at 20a-21a.

11
Finally, the court rejected the argument that, in the face of “a prospective change in state marriage laws, Congress was entitled to ‘freeze’ the situation and reflect,” explaining that “[t]he House Report’s own arguments—moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.” App., infra, 22a. And while the House Report “did emphasize a related concern * * * that state judges would impose same-sex marriage on unwilling states,” the court explained that States can “protect themselves against what their citizens may regard as overreaching,” and that the concern in any event is addressed by Section 2 of DOMA, which is not at issue in this case. Ibid.
In evaluating Section 3’s constitutionality, the court of appeals “d[id] not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App., infra, 23a. The court reasoned that “[t]he many legislators who supported DOMA acted from a variety of motives,” including a desire to “preserve the heritage of marriage as traditionally defined.” Ibid. But the court concluded that Section 3 is invalid because the “denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Id. at 24a.
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. The court of appeals correctly concluded that none of the rationales for Section 3’s passage justifies such disparate treatment of same-sex married couples. Section 3 therefore violates the guarantee of equal protection secured by the Fifth Amendment.

12
Although the Executive Branch agrees with the court of appeals’ determination that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As federal officials charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a federal statute on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).3
3 The fact that the government agrees with respondents that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department's position in this case. The Department did not oppose the subsequent interven-

13
This Court’s review is warranted because the court of appeals invalidated an Act of Congress, and because the court of appeals’ decision raises important questions concerning the proper standards for reviewing classifications based on sexual orientation that should be resolved by this Court. Authoritative resolution of the question presented is of great importance to the United States and to respondents and tens of thousands of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law. The petition for a writ of certiorari should be granted.
A. This Court’s Review Is Warranted Because The Court Of Appeals Invalidated An Act Of Congress
Review by this Court is warranted because the court of appeals invalidated a provision of an Act of Congress as unconstitutional. Although no other court of appeals
tion by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation). Because the Executive Branch petitioners have properly invoked the jurisdiction of this Court, there is no need for the Court to address the question whether BLAG has independent standing to seek review of the court of appeals’ decision.

14
has yet passed on the constitutionality of Section 3 of DOMA, this Court’s ordinary practice is to grant review when a court of appeals holds a federal statute unconstitutional, even in the absence of a circuit conflict. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000); National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty” of the courts. Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Respect for a coequal branch of government counsels in favor of reviewing a lower court’s exercise of “the grave power of annulling an Act of Congress.” United States v. Gainey, 380 U.S. 63, 65 (1965).
B. The Decision Below Raises Important Questions Of Federal Law That Should Be Settled By This Court
Review is also warranted because the court of appeals’ invalidation of Section 3 raises important questions of federal law that have not been, but should be, settled by this Court. See Sup. Ct. R. 10(c).
1. The Constitution’s equal protection guarantee, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a basic requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

15 Under this Court’s precedents, general social and economic legislation is ordinarily presumed valid, even though it may draw distinctions between different classes of individuals. Cleburne, 473 U.S. at 440. The Court will thus generally uphold such legislation if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). This Court has held that this deferential framework of review does not, however, apply to legislation that classifies on the basis of certain characteristics, including race, national origin, illegitimacy, and gender, that are deemed “suspect” or “quasi-suspect.” “These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.” Cleburne, 473 U.S. at 440-441. The law thus calls for more searching constitutional review of such classifications to determine whether they are adequately justified by legitimate state interests. Heightened scrutiny calls on courts to examine only the “actual [governmental] purposes” underlying such classifications rather than “rationalizations for actions in fact differently grounded,” United States v. Virginia, 518 U.S. 515, 535-536 (1996), and to determine, at a minimum, whether the classification bears a substantial relationship to an important governmental objective, Clark v. Jeter, 486 U.S. 456, 461 (1988). This Court’s cases have identified a number of factors to guide the determination whether heightened scrutiny applies to legislation targeting certain classes of individuals for less favorable treatment. These factors include: (1) whether the group in question has suf-

16 fered a history of discrimination; (2) whether members of the group share obvious, immutable, or distinguishing characteristics; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion); see also Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Cleburne, 473 U.S. at 435-441.
2. Section 3 of DOMA draws distinctions between couples who are legally married under their States’ laws based on their sexual orientation. It excludes same-sex married couples—whether men or women—from the federal recognition and benefits available to oppositesex married couples.
This Court has never decided the appropriate equal protection framework for reviewing classifications based on sexual orientation. Cf. Romer v. Evans, 517 U.S. 620, 634-635 (1996) (invalidating a state constitutional amendment prohibiting any state or local action designed to protect gay and lesbian individuals as lacking a rational basis, without considering whether the classification warranted heightened scrutiny). The factors the Court has identified as relevant to the inquiry, however, counsel strongly in favor of treating sexual orientation classifications with suspicion.
As the court of appeals noted, “gays and lesbians have long been the subject of discrimination.” App., infra, 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465-466 (7th Cir. 1989) (“Homosexuals have suffered a history of discrimination and still do, though possibly

17 now in less degree.”), cert. denied, 494 U.S. 1004 (1990). Gay and lesbian individuals also represent a “minority,” App., infra, 22a, that has “historically been less able to protect itself through the political process,” id. at 20a. That group is defined by a distinguishing characteristic—sexual orientation—that is not ordinarily “relevant to interests the State has the authority to implement,” Cleburne, 473 U.S. at 441. Heightened scrutiny of legislative classifications based on sexual orientation is therefore warranted to ensure that they do not “invidiously relegat[e]” gay and lesbian individuals to “inferior legal status,” Frontiero, 411 U.S. at 687 (plurality opinion), based simply on a view that gay and lesbian individuals as a class “are not as worthy or deserving as others,” Cleburne, 473 U.S. at 440.
Section 3 of DOMA fails under heightened scrutiny. The disparate treatment of gay and lesbian individuals who are legally married under state law does not substantially advance any important governmental purpose that motivated the enactment of Section 3.
To begin with, because Section 3 does not purport to forbid same-sex marriage, but instead simply denies federal benefits to same-sex couples who are already married, it does not meaningfully advance any cognizable federal interest in “defending and nurturing the institution of traditional, heterosexual marriage.” 1996 House Report 12. Nor does denying benefits to samesex married couples substantially further an interest in “encouraging responsible procreation and child-rearing.” Id. at 13.
This Court’s cases, moreover, have made clear that neither moral disapproval nor the desire to preserve “scarce government resources,” 1996 House Report 12, adequately justifies legislation that targets suspect or quasi-suspect classes for adverse treatment, see Law-

18 rence, 539 U.S. at 577; Graham v. Richardson, 403 U.S. 365, 374-375 (1971).
Finally, insofar as the House Committee Report cited the federal government’s interest in “protecting state sovereignty and democratic self-governance,” it cited that rationale in connection with Section 2, not Section 3. 1996 House Report 16-18. Section 3 bears no substantial connection to that rationale in any event; it was not, for example, “framed as a temporary measure” to facilitate the States’ own choices about whether to recognize same-sex marriage, App., infra, 22a, but instead was designed indefinitely to deny recognition to same-sex married couples for purposes of a wide array of federal statutes and programs, regardless of the content of state law.
The mismatch between Section 3’s stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals “not to further a proper legislative end but to make them unequal to everyone else.” Romer, 517 U.S. at 635; see 1996 House Report 15 n.53 (suggesting that “[m]aintaining a preferred societal status of heterosexual marriage” will “promot[e] heterosexuality”); id. at 16 (citing “a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”). Section 3 accordingly violates the guarantee of equal protection secured by the Fifth Amendment.
3. The First Circuit, like every other court of appeals that has addressed the issue to date, concluded in a prior case that classifications based on sexual orientation are subject to rational basis review, rather than the heightened scrutiny applicable to suspect or quasi-suspect classifications. See Cook v. Gates, 528 F.3d 42, 61 (2008), cert. denied, 556 U.S. 1289 (2009)). Neither Cook nor any other case has, however, offered an explanation for that

19
conclusion that withstands scrutiny under this Court’s precedents.4
The earliest court of appeals decisions addressing the issue simply assumed without explanation that gay and lesbian individuals are not a suspect or quasi-suspect class. See, e.g., Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence, supra; National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam).
Following this Court’s now-overruled decision upholding a state law criminalizing sodomy, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, supra, some courts of appeals relied on that holding to conclude that discrimination against gay and lesbian individuals is presumptively constitutional. Those courts reasoned that they could not “constitute either a ‘suspect class’ or a ‘quasi-suspect class’ ” if “the conduct which defined them as homosexuals was constitutionally proscribable.”
4 Cook and a number of cases in other circuits involved challenges to military policies on “homosexual conduct.” See 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays, 895 F.2d at 565; Ben- Shalom, 881 F.2d at 456; Woodward v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990). As a number of those courts have noted, because Congress’s authority to raise and support armies commands special judicial deference, classifications in the military context may present different questions from classifications in the civilian context. Rostker, 453 U.S. at 64-65, 70 (upholding male-only selective service registration against sex-discrimination challenge); see Goldman v. Weinberger, 475 U.S. 503, 507-509 (1986) (upholding military dress regulations barring the wearing of a yarmulke against First Amendment challenge); see also, e.g., Steffan, 41 F.3d at 685 (citing the “special deference” owed “to the ‘considered professional judgment’ of ‘appropriate military officials’ ”) (quoting Goldman, 475 U.S. at 509).

20 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998); accord Ben-Shalom, 881 F.2d at 464; Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); see also High Tech Gays, 895 F.2d at 570-571 (relying in part on Ben-Shalom, Woodward, and Padula to conclude that gay and lesbian individuals are not a suspect or quasisuspect class); cf. Lawrence, 539 U.S. at 575 (noting that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”). This Court’s decision in Lawrence contradicts that basic premise.
Some courts of appeals also reasoned that gay and lesbian individuals differ from previously recognized suspect and quasi-suspect classes in that members of such classes, “e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.” Woodward, 871 F.2d at 1076; accord High Tech Gays, 895 F.2d at 573. Subsequent decisions of this Court have undermined that reasoning. See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (noting that this Court’s cases have “declined to distinguish between status and conduct in this context”) (citing, inter alia, Lawrence, 539 U.S. at 575, and id. at 583 (O’Connor, J., concurring in the judgment)); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Some courts have further suggested that heightened constitutional protection against invidious discrimination is unnecessary because gay and lesbian individuals “have the ability to and do ‘attract the attention of the lawmakers,’ ” as evidenced by the passage of anti-discrimination

21 legislation in some States. High Tech Gays, 895 F.2d at 574 (citing, inter alia, Ben-Shalom, 881 F.2d at 466). But this Court has not considered the passage of antidiscrimination laws in some States—or even by the federal government—to eliminate the need for searching judicial review of other laws that disadvantage a protected class. On the contrary, the plurality opinion in Frontiero cited the enactment of federal protections against sex discrimination as bolstering the conclusion that sex-based classifications are inherently invidious and thus deserving of heightened constitutional scrutiny. See 411 U.S. at 687-688.
Finally, the most recent decisions applying rational basis review, including the First Circuit’s decision in Cook, have simply relied on other courts’ decisions, see Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases), cert. denied, 543 U.S. 1081 (2005), or on the fact that this Court “has never ruled that sexual orientation is a suspect classification for equal protection purposes,” even though the Court has never squarely confronted that question, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); accord Cook, 528 F.3d at 61. No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents.
4. Although the court of appeals in this case acknowledged that there is “[s]ome similarity” between the factors underlying this Court’s decision to extend heightened scrutiny to gender-based classifications and those applicable to sexual orientation classifications, it concluded that circuit precedent foreclosed extending heightened scrutiny to sexual orientation classifications. App., infra, 10a (citing Cook, supra). But while the court determined that Section 3 would survive “conventional rational basis review,” id. at 9a, 13a, it concluded that

22
Section 3’s effect on a minority group that has been politically unpopular and has suffered a long history of discrimination, reinforced by federalism concerns, warranted application of “closer than usual” review, id. at 7a, 14a-15a, 22a. Thus, rather than extend to Section 3 the “extreme deference accorded to ordinary economic legislation,” id. at 14a, the court below examined the purposes underlying the enactment of Section 3 and found an insufficient connection to any legitimate governmental end to justify denying federal benefits to same-sex couples who are legally married under state law.
As the court of appeals itself acknowledged, the proper approach for reviewing the constitutionality of Section 3 is a matter that only this Court can resolve. See App., infra, 7a (“We have done our best to discern the direction of [Supreme Court precedent], but only the Supreme Court can finally decide this unique case.”). This Court’s review is warranted to consider the important questions raised by the decision below.
C. Authoritative Resolution Of The Question Presented Is Of Great Public Importance
1. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have a substantial impact on the conduct of a wide array of Executive functions. As a result of the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution. Other cases challenging the constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and defin-

23 itive ruling on Section 3’s constitutionality is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
2. To help ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion, the government is also filing today a petition for a writ of certiorari before judgment in Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal pending, No. 12-15388 (9th Cir. filed Feb. 24, 2012) and No. 12-15409 (9th Cir. filed Feb. 28, 2012).
In Golinski, supra, the district court held that heightened scrutiny applies to classifications based on sexual orientation and that Section 3 fails that standard of review. In the alternative, the district court held that Section 3 is invalid under rational basis review. Golinski provides an appropriate vehicle for the Court to consider the constitutionality of Section 3.

24
CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys
JULY 2012

APPENDIX A UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF, APPELLEE v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS, APPELLANTS
Nos. 10-2207 & 10-2214 DEAN HARA, PLAINTIFF, APPELLEE/CROSS-APPELLANT, NANCY GILL, ET AL., PLAINTIFFS, APPELLEES, KEITH TONEY, ET AL., PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., DEFENDANTS, APPELLANTS/CROSS-APPELLEES, HILARY RODHAM CLINTON, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF STATE,
DEFENDANT
Filed: May 31, 2012
(1a)

2a APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before: LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
BOUDIN, Circuit Judge. These appeals present constitutional challenges to section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to same-sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23—which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)—the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision;1
1 E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

3a
many more states responded by banning same-sex marriage by statute or constitutional amendment.2
Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must—having only two operative paragraphs—be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines “marriage” for purposes of federal law:
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. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26
2 E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May 13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).

4a U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f ), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with samesex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of samesex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA’s opposite-sex marriage definition—such
3 U.S. Census Bureau, Census Bureau Releases Estimates of SameSex Married Couples (Sept. 27, 2011),http://www.census.gov/newsroom/ releases/archives/2010_census/cb11-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supptable-AFF.xls (last visited May 22, 2012).

5a
as Massachusetts’ state Medicaid program and veterans’ cemeteries.
By combining the income of individuals in same-sex marriages, Massachusetts’ Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal “veterans’ cemetery” status and gives the Department of Veterans’ Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth’s argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court’s judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification—discussed separately below—the federal defendants have throughout focused solely upon the district court’s premise that DOMA is unconstitutional.

6a
The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a “heightened scrutiny” standard and that DOMA failed under that standard. It opposed the separate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department’s about face while defense of the statute passed to a group of Republican leaders of the House of Representatives—the Bipartisan Legal Advisory Group (“the Legal Group”)—who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and “legislative facts” bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common knowledge. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess

7a
the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine—not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Following Baker,

8a
“gay rights” claims prevailed in several well known decisions, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996),4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving “suspect” classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications—race, alienage and national origin—require what the Court calls strict scrutiny, which entails both a compelling governmental in-
4 Lawrence struck down Texas’ statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny— applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.

9a terest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the “last resort of constitutional argument,” Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955), without regard to Congress’ actual motives. Beach Commc’ns, 508 U.S. at 314. Means need not be narrowly drawn to meet—or even be entirely consistent with—the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
5 United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).

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The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the so-called intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined to create a major new category of “suspect classification” for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded “Don’t Ask, Don’t Tell” policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.

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However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions—not classic rational basis review—that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress’ decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation’s fit—finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a “bare congressional desire to harm a politically unpopular group.” Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as ap-

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plied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental disability too had no connection to alleged concerns about population density. All that remained were “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.” Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado’s constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling “unprecedented” the “disqualification of a class of persons from the right to seek specific protection from the law,” deemed the provision a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests.” Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this— both favorably, City of Cleburne, 473 U.S. at 451-55 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the circumstances of the case and not dependent

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entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential “rational basis” test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination. United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (citing City of Cleburne as an example). There is nothing remarkable about this: categories are often approximations and are themselves constructed by weighing of underlying elements. All three of the cited cases—Moreno, City of Cleburne and Romer—stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. As for burden, the combined effect of DOMA’s restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. For those married same-sex couples of which one partner is in federal service, the other cannot
6 E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).

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take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.
These burdens are comparable to those the Court found substantial in Moreno, City of Cleburne, and Romer. Moreno, like this case, involved meaningful economic benefits; City of Cleburne involved the opportunity to secure housing; Romer, the chance to secure equal protection of the laws on the same terms as other groups. Loss of survivor’s social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on “compelling” or “important” justifications or “narrow tailoring,” the Court would scrutinize with care the purported bases for the legislation. Before providing such scrutiny, a separate element absent in Moreno, City of Cleburne, and Romer—federalism—must be considered.
Federalism. In assailing DOMA, the plaintiffs and especially the Commonwealth rely directly on limitations attributed to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual

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scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)—Congress has provided its own definitions limited to the particular program or personnel involved. But no precedent exists for DOMA’s sweeping general “federal” definition of marriage for all federal statutes and programs. Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has

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traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the “germaneness” requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole, the Supreme Court upheld a condition by which federal funds for highway construction depended on a state’s adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spend-

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ing Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7 cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).
7 The majority, focusing on the related issue of fit, said that “a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating “because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.” Id. at 2520 (Thomas, J., concurring in part and dissenting in part).

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True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
DOMA’s Rationales. Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA, Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (“Hearing”), and none of the testimony concerned DOMA’s effects on the numerous federal programs at issue. Some of the odder consequences of DOMA testify to the speed with which it was adopted.8
The statute, only a few paragraphs in length, is devoid of the express prefatory findings commonly made in major federal laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400; 21 U.S.C. § 801; 29 U.S.C.
8 For example, DOMA’s definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on antinepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.

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§ 151; id. § 1001; 42 U.S.C. § 7401. Accordingly, in discerning and assessing Congress’ basis for DOMA our main resort is the House Committee report and, in lesser measure, to variations of its themes advanced in the briefs before us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to section 3—indeed, is antithetical to it—but was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality. First, starting with the most concrete of the cited reasons—“preserving scarce government resources”—it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more

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detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group’s brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
9 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/ default/files/cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf.
10 The House Report refers obliquely to the importance of heterosexual marriage in “encouraging responsible procreation and childrearing,” H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that “heterosexual marriage provides the ideal structure within which to beget and raise children.” Hearing, supra, at 1 (opening statement of Rep. Canady).

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Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples—whose marriages may in any event be childless, unstable or both—or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA’s treatment of samesex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA’s stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian)morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality “morally wrong”). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have

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undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group’s brief that, faced with a prospective change in state marriage laws, Congress was entitled to “freeze” the situation and reflect. But the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report’s own arguments— moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court’s decision in Baehr, that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id. at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require

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somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as “mere moral disapproval of an excluded group,” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in

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court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara’s Health Benefits Claim. A distinct, if much narrower, issue is raised by Dean Hara, one of the Gill plaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).

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Hara was married under Massachusetts law to a now-deceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman’s Federal Employees’ Health Benefit Plan (“FEHBP”). For this, (1) Hara would have to be an eligible “annuitant” under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for “self and family,” which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management (“OPM”) had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board (“MSPB” or “Board”) and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now—as at the time the district court issued its judgment—a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara’s claim for FEHBP health enrollment because of the Congressman’s failure to elect “self and family” coverage. Although the district court found DOMA unconstitutional, it refused to

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resolve Hara’s health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.

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ADDENDUM SECTION. 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”. SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: “§ 1738C. Certain acts, records, and proceedings and the effect thereof
“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.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: “1738C. Certain acts, records, and proceedings and the effect thereof.”. SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

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“§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress,
or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: “7. Definition of ‘marriage’ and ‘spouse’.”

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APPENDIX B
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
MEMORANDUM
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically,
1 1 U.S.C. § 7. 2 Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J.

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Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA,
Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
3 Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4 In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996)

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which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, 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.6
In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being
6 1 U.S.C. § 7. 7 852 P.2d 44 (Haw. 1993). 8 See id. at 59-67. 9 Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside.

32a
waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.” 10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” 11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “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.12
In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, 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.” 14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the
10 Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”].
11 Id. at 10. 12 Id. at 2. 13 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.” 14 Id. at 25.

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definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.” 16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’ ” 17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.” 18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” 20 In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.” 21
In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion”
15 Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16 Id. at 3. 17 Id. at 12. 18 Id. 19 Id. at 13, 18. 20 Id. at 16 (footnote omitted). 21 142 CONG. REC. H7480 (daily ed. July 12, 1996).

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and “an attack upon God’s principles.” 22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.” 24
Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined,
22 142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith).
23 Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”).
24 Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).

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prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
1. Health Benefits Based on Federal Employment
Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employ-
25 House Report at 10-11. 26 Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-9716). 27 U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.

36a ees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program.
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses.
Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program
The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers
28 “Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B).
29 5 U.S.C. § 8905.

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must meet in order to offer coverage under the program.30
The Office of Personnel Management (“OPM”) administers the FEHB and is empowered to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,” 32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.” 33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . .” 37 An employee enrolled in the FEHB for
30 Id. §§ 8901-8914. 31 Id. §§ 8902, 8903, 8906. 32 Id. § 8913. 33 Id. 34 Id. § 8906. 35 Id. §§ 8905, 8906. 36 5 C.F.R. § 890.302(a)(1). 37 Id. § 8901(5).

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“self only” coverage may change to “self and family” coverage by submitting documentation to the employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.” 38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the
38 See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39 See 5 U.S.C. § 8901(3)(B). 40 5 C.F.R. § 890.303(c). 41 5 U.S.C. §§ 8951, 8952, 8981, 8982. 42 Id. §§ 8951, 8954, 8981, 8984.

39a FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.” 47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” 48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
43 Id. §§ 8952(a), 8953, 8982(a), 8983. 44 Id. §§ 8962(a), 8992(a). 45 Id. §§ 8958(a), 8988(a). 46 Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47 Id. § 894.201(c). 48 Id. 894.509(a), (b). 49 See 5 U.S.C. §§ 8951(2), 8991(2).

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C. Flexible Spending Arrangement Program50
A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits
The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent]
50 Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program.” Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
51 26 U.S.C. § 125. 52 See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53 Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 54 42 U.S.C. §§ 901, 902.

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provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.” 55
A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert Burtis seeks Widower’s Insurance Benefits.
A. Retirement Benefits The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].” 57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-
55 Id. § 405(a); see id.§ 902(a)(5). 56 Id. §§ 402, 413(a), 414, 415. 57 Id. § 402(b), (c).

42a Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.60
ii. Widower’s Insurance Benefit The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or selfemployment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
58 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male.
59 Id. §§ 402(I), 413(a), 414(a), (b). 60 Id. §§ 402(I), 415(a). 61 Id. §§ 402(f), 413(a), 414(a), (b). 62 Id. § 402(f)(1); see id.§ 402(f)(3).

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3. Filing Status Under the Internal Revenue Code
Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In
63 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
64 Id. § 6013(b)(1), (2). 65 Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008).

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granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68
B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits
As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact. . . . Second, there must be causation—a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 69 Where the plaintiff lacks standing to pursue his claim, the
67 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68 This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously. 69 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain
70 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 71 5 U.S.C. § 8905(b). 72 5 U.S.C. § 8347(b). 73 See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985). 74 The appeal, however, has been stayed pending the outcome of this action.

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ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annu-

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ity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a ceiling, to coverage eligibility. Plaintiffs assert, therefore, that
75 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.” 77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “ ‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” 78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.” 79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.” 80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot plausibly
76 5 C.F.R. § 890.302(a)(1) (emphasis added). 77 One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 78 5 U.S.C. § 8901(5) (emphasis added). 79 United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 80 1 U.S.C. § 7.

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interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” 83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’ ”84 And it is because of this “commitment to the law’s neutrality
81 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82 In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

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where the rights of persons are at stake” 85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.86
To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” 87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” 88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry—if it bears a rational relationship to a legitimate government interest.90
85 Romer, 517 U.S. at 623. 86 Id. 87 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88 Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89 Id. 90 Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.

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Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” 91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” 92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded
91 Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted).
92 Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted).

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a strong presumption of validity . . . [and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” 93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.” 95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” 96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].” 97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” 98 Importantly, the objective served by the law must be not only a proper arena
93 Id. (internal citations omitted). 94 Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted). 95 Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96 Romer, 517 U.S. at 633. 97 Id. 98 Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”).

53a
for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.” 100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 101 As such, a law must fail rational basis review where the “purported justifications . . . [make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.” 102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA
99 Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441).
100 Heller v. Doe, 509 U.S. 312, 321 (1993). 101 City of Cleburne, 473 U.S. at 447. 102 Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103 House Report at 12-18.

54a
does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 104
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the
104 City of Cleburne, 473 U.S. at 446. 105 See Def.’s Mem. Supp. Mot. Dismiss, 19 n.10. 106 Def.’s Mem. Supp. Mot. Dismiss, 19 n.10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy. aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http:// www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/ cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_ parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm).

55a time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” 107 when afforded equal recognition under federal law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA
107 Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108 See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting). 109 Id.

56a
effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” 112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean” 113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.” 114
110 Romer, 517 U.S. at 632-33. 111 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112 Id. 113 United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114 Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone).

57a
Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . . ” 115
And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.” 117 This court can discern no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cog-
115 Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
116 This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of samesex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages.
117 Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).

58a nizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation
Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation.
In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.
In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118 City of Cleburne, 473 U.S. at 448.

59a
For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges.
119 See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156JLT (D. Mass. July 8, 2010) (Tauro, J.).
120 See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).

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There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. This is especially true where a statute deals with a familiar relationship [because] there is no federal law of domestic relations.” 122
This conclusion is further bolstered by an examination of the federal government’s historical treatment of state marital status determinations.123 Marital eligibility for heterosexual couples has varied from state to state throughout the course of history. Indeed, pursuant to the sovereign power over family law granted to the states by virtue of the federalist system, as well as the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise,” 124 individual states have changed their marital eligibility requirements in myriad ways over time.125 And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as
121 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
122 DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted).
123 This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
124 United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring).
125 See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982).

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valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law.126
By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
126 See, e.g., Dunn v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3) (Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1( j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any statesanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127 See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967).

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The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.” 128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.130
128 Def.’s Reply Mem., 14. 129 See NANCY COTT, PUBLIC VOWS 163 (2000). 130 Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 61415 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id. at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view

63a
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 131 And the absence of precedent for the legislative classification at issue here is equally instructive, for “‘discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [C]onstitution[]. . . . ’ ” 132
The government is certainly correct in its assertion that the scope of a federal program is generally determined with reference to federal law. But the historically entrenched practice of incorporating state law determinations of marital status where they are relevant to federal law reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest
that, in the United States, for the most part, family law is state law. . . . Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).
132 Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

64a in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo
133 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010).

65a
might help to achieve. Staying the course is not an end in and of itself, but rather a means to an end. Even assuming for the sake of argument that DOMA succeeded in preserving the federal status quo, which this court has concluded that it did not, such assumption does nothing more than describe what DOMA does. It does not provide a justification for doing it. This court does not doubt that Congress occasionally encounters social problems best dealt with by preserving the status quo or adjusting national policy incrementally.134 But to assume that such a congressional response is appropriate requires a predicate assumption that there indeed exists a “problem” with which Congress must grapple.135
134 The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135 Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on

66a
The only “problem” that the government suggests DOMA might address is that of state-to-state inconsistencies in the distribution of federal marriage-based benefits. But the classification that DOMA effects does not bear any rational relationship to this asserted interest in consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the
national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
136 RSA 457:4-5.

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federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex
137 City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
138 See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications . . . made no sense in light of how the [government] treated other groups similarly situated”).

68a marriage” 139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws—that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal
139 Def.’s Mem. Opp. Summ. Judg., 16.

69a
that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
140 See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141 See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/ d04353r.pdf.
142 8 U.S.C. § 1430. 143 8 U.S.C. § 1186b(2)(A). 144 See 5 U.S.C. § 6382.

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It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” 146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” 147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern
145 See Heller, 509 U.S. at 319-20 (internal citations omitted). 146 Id . at 321. 147 Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).

71a a relationship to legitimate [government] interests.” 148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
148 Romer, 517 U.S. at 635. 149 Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).

72a IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge

73a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
ORDER
TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that: 1. Defendants’ Motion to Dismiss [#20] is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant’s Motion to Dismiss [#20] is DENIED as to all claims, except Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED.

74a IT IS SO ORDERED.
/s/ [ILLEGIBLE] United States District Judge

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APPENDIX D
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
No. 1:09-cv-10309 JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: Aug. 17, 2010
AMENDED JUDGMENT
This action came on for a hearing before the Court on the Defendants’ Motion to Dismiss [#20] and Plaintiffs’ Motion for Summary Judgment [#25], and the issues having been duly heard and a Memorandum having been issued on July 8, 2010,
It is ORDERED AND ADJUDGED: The Plaintiffs’ Motion for Summary Judgment is ALLOWED and: (1) The rights of the Plaintiffs are declared as follows:

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(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), is unconstitutional as applied to the Plaintiffs by the Defendants in the administration and application of (1) the Federal Employees Health Benefits Program (“FEHB”), (2) the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), (3) the United States Postal Service Health Care Flexible Spending Account program (“Postal Service Health Care FSA”), (4) certain retirement and survivor benefit provisions of the Social Security Act, as set forth below, and (5) the Internal Revenue Code.
(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f ) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse,

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Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security LumpSum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management (“OPM”) is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 of DOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from “self only” to “self and family” so as to provide coverage for his spouse, Plaintiff James Fitzgerald;

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(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara’s application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
(b) to review the Plaintiff Jo Ann Whitehead’s application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, without regard to Section 3 of DOMA;
(c) to review the Plaintiff Randell LewisKendell’s application for the Social Security LumpSum Death Benefit without regard to Section 3 of DOMA; and
(d) to review the Plaintiff Herb Burtis’s application for the Social Security Lump-Sum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate pro-

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vided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054.
(b) For the taxable year ending December 31, 2005: $2,703.
(c) For the taxable year ending December 31, 2006: $4,390.
(d) For the taxable year ending December 31, 2007: $6,371.
(e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
(a) For the taxable year ending December 31, 2004: $4,687.
(b) For the taxable year ending December 31, 2005: $3,785.
(c) For the taxable year ending December 31, 2006: $5,546.

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(d) For the taxable year ending December 31, 2007: $5,697.
(e) For the taxable year ending December 31, 2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America:
(a) For the taxable year ending December 31, 2006: $1,286.
(b) For the taxable year ending December 31, 2007: $1,234.
(c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Defendants’ Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely

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on the Plaintiff Dean Hara’s claim for enrollment in the FEHB Program as a matter of standing.
JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties’ concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12, 2010 [#71].

ENTERED:

/s/ JOSEPH L. TAURO JOSEPH L. TAURO United States District Judge

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APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED
STATES OF AMERICA, DEFENDANTS
Filed: July 8, 2010
MEMORANDUM

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TAURO, J.: I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff ’s Motion for Summary Judgment [#26] is ALLOWED.3
1 1 U.S.C. § 7. 2 Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.” 3 In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

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II. Background4
A. The Defense of Marriage Act
Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 6
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Ac-
4 Defendants, with limited exception, concede the accuracy of Plaintiff ’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
6 1 U.S.C. § 7.

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counting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States
State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10
In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and
7 Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO04-353R).
8 Id. at 1. 9 Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10 Id. 11 Id., ¶ 10.

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protections of the federal Constitution) for the health, safety and welfare of their populations.” 12
In large part, rules and regulations regarding marriage corresponded with local circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.” 16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of consti-
12 Id. 13 Id. 14 Id. 15 Id., ¶ 14. 16 Id. 17 Id., ¶¶ 15, 18-19. 18 Id., ¶ 19.

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tutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.” 20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.” 21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status
19 Id . 20 Id. 21 Id. 22 Id. 23 See id ., ¶¶ 20-52. 24 Id .

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determinations for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.” 29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.” 31
25 Id ., ¶ 45. 26 Defs.’ Mem. Mot. Dismiss, 27. 27 See Cott Aff., ¶¶ 36, 44. 28 Id ., ¶ 35. 29 Id. 30 Id ., ¶ 37. 31 Id.

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In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from AfricanAmerican voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39
32 Id., ¶ 36. 33 Id . 34 Id ., ¶ 38. 35 Id. 36 Id. 37 Id ., ¶ 38. 38 Id., ¶ 43. 39 In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so

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Throughout this entire period, however, the federal government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts
In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.” 43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recogni-
directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40 Cott Aff., ¶ 45. 41 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42 Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43 Compl. ¶ 17. 44 Id ., ¶¶ 18-19. 45 Nyberg Aff., ¶¶ 6-7.

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tion of these marriages, the Commonwealth contends that the statute has a significant negative impact on the operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46 Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47 Id. 48 Id., ¶ 4. 49 Id ., ¶ 4. 50 Walls Aff., ¶ 8 (citations omitted). 51 Id .

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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.” 55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
52 Id ., ¶ 5. 53 Id ., ¶ 5. 54 Id ., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department . . .”)). 55 Id ., ¶ 6. 56 38 U.S.C. § 2408(c). 57 Walls Aff., ¶ 10.

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The VA regulations require that veterans’ cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children. . . .” 58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” 60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” 61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would
58 38 C.F.R. § 39.5(a). 59 Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services ( June 18, 2004). 60 Id. 61 Walls Aff., Ex. 2, NCA Directive 3210/1 ( June 4, 2008).

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not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.” 62
On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (13), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which rec-
62 Walls Aff., ¶ 20. 63 Walls Aff., Ex. 3, Copy of Approved Application. 64 Walls Aff., ¶ 22, Ex. 4, Marriage License. 65 Walls Aff., ¶ 23. 66 Id. 67 Id., ¶ 24. 68 Id., ¶ 25.

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ognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government, Thomas Hopkins is ineligible for burial in Winchendon.70
Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the Winchendon cemetery and intends to bury the couple together.71
2. MassHealth Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74 MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately onehalf of its Medicaid expenditures76 and administration
69 Id ., ¶ 26. 70 Id ., ¶ 26. 71 Id ., ¶¶ 21, 27. 72 Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73 Id. 74 Id., ¶¶ 2, 5. 75 Id., ¶ 5. 76 Id ., ¶ 7.

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costs.77 HHS provides MassHealth with billions of dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for
77 Id., ¶ 7. 78 Id., ¶ 6. 79 Id ., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report ( June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/ reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80 Id., ¶ 8. 81 Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82 Id., ¶ 9. 83 Id., ¶ 11. 84 Id., ¶ 14.

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Medicaid when assessed as single, even though they would qualify if assessed as married.85
The Commonwealth contends that, under certain circumstances, the recognition of same-sex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible.89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the
85 Id. 86 Id ., ¶ 11. 87 Id., ¶ 11. 88 Id., ¶ 11. 89 Id., ¶ 12. 90 Id., ¶ 12.

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$43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse earning $7,000 per year is eligible for Medicaid coverage.92
After the Commonwealth began recognizing samesex marriages in 2004, MassHealth sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.” 95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability
91 Id., ¶ 12. 92 Id ., ¶ 12. 93 Id ., ¶ 15. 94 Id ., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95 Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61.

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of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.” 96 In addition, CMS stated that “because same sex couples are not spouses under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.” 97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.” 98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
96 Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21, 2008).
97 Id. 98 Id. 99 Callahan Aff., ¶ 22. 100 Id., ¶ 23.

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3. Medicare Tax
Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing samesex marriages, and December 2009.107
101 Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26 C.F.R. § 1.106-1).
102 McHugh Aff., ¶ 4. 103 Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104 Id. 105 Id. 106 Id., ¶ 7. 107 Id ., ¶ 8.

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Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion
A. Summary Judgment
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
108 Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109 Id., ¶ 10. 110 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112 This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.

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B. Standing
This court first addresses the government’s contention that the Commonwealth lacks standing to bring certain claims against the VA and HHS.113
“The irreducible constitutional minimum of standing” hinges on a claimant’s ability to establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation—a fairly traceable connection between the plaintiff ’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.” 115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a
113 The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115 Defs.’ Mem. Mot. Dismiss, 32.

103a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarlysituated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication
116 See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007).

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that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely . . . speculative.” 117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” 119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 120 The division
117 Def.’s Mem. Mot. Dismiss, 34. 118 New York v. United States, 505 U.S. 144, 156 (1992). 119 United States v. Morrison, 529 U.S. 598, 607 (2000). 120 U.S. CONST. Amend. X.

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between state and federal powers delineated by the Constitution is not merely “formalistic.” 121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” 122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.” 124
Since, in essence, “the two inquiries are mirror images of each other,” 125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or
121 New York v. United States, 505 U.S. 144, 187 (1992). 122 Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123 Id . 124 New York, 505 U.S. at 155. 125 Id. at 156.

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more of its powers enumerated in the Constitution.” 126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.” 127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” 128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdic-
126 United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)).
127 United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
128 Morrison, 529 U.S. at 607. 129 See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause). 130 529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”). 131 United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce”).

107a tional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133 It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its
132 U.S. CONST. art. I, § 8. 133 Pl.’s Reply Mem., 3.

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spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.” 137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of
134 Arlington Cent. Sch. Dist. Bd . of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
135 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136 483 U.S. 203 (1987). 137 Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).

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Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” 138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to . . . legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ ” 139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” 140
In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process
138 Dole, 483 U.S. at 210. 139 Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140 Id. (internal citation omitted).

110a Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the samesex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal funding, this
141 Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).

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court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.” 142
A. DOMA Regulates the Commonwealth “as a State”
With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam
142 106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass’n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).

112a and Winchendon should the same-sex spouse of a veteran be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.” 144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and pa-
143 The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144 Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568).

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ternity,” 145 is often held out as the archetypal area of local concern.146
The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 148
145 Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).
146 See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147 Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).

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State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard their states’ areas of sovereign concern.
The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character.
That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded

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marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” 150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” 151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sover-
149 See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
150 529 U.S. at 615 (emphasis added). 151 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted).

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eignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.” 153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of statehood.
C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions
Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA
152 Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process.
153 Defs.’ Reply Mem., 5.

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would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.” 155 And, in
154 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’ ” were “abandon[ed] . . . as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
155 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 645-52

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view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.” 156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury samesex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an applica-
(2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156 New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.

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tion for the burial of Thomas Hopkins, the same-sex partner of Darrel Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on

120a the “core of sovereignty retained by the States,” 157 because “the Constitution . . . divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff ’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge
157 New York, 505 U.S. at 159. 158 Id. at 187.

121a APPENDIX F
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: July 8, 2010
ORDER

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TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX G UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: Aug. 12, 2010
JUDGMENT

124a
TAURO, J.
Having allowed Plaintiffs Motion for Summary Judgment [#26], this court hereby enters the following judgment in this action:
1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

125a
APPENDIX H
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

 
 w. Scott Simpson
&niM Trial Cow",. 1

u.s. Department or Justice
Civil Division Fedel1ll Programs Blanch
1'00' 0/f1CO Box 883 w",hi"t''''' D.C. 2()()4~
June IS, 2009

BY E-MAIL AND FIRST-CLASS MAIL
Gary O. Buseck I Mary L. Bonauto Nima R. Eshghi I Janson Wu Gay & Lesbian Advocates & Defenders
30 Winter Street, Suite 800
Boston, MA 02108
Amy Senler I Claire Laporte Matthew E. Miller I Vickie L. Heruy Foley Haag LLP
I SS Seaport Boulevard Seaport World Trade Center West Boston, MA 02210
Re: Nancy Gill, et a!. v. Office of Personnel Management, et aI.,
Case No I :09::cv-I 03Q9 JU CD, Ma5§)
Dear Counsel:
TItis is to infonn you that the Department of State has amended the relevant provision of
its Foreign Affairs Manual ("FAM") to provide for issuance of passports in a new name based on
a legal name change !'C(:ognized under State law. This amendment is effC(;tive immediately. It is being transmitted to State Department field offices, and has been posted on the Department's web site as amended 7 FAM 1359 Appendix C. The State Department has made this amendment to the FAM in accordance with 22 C.F.R. § SI.25(cX4), which, following a 2007 amendment (effective February 2008), provides that "[a) name change will be recognized for purposes of issuing a passport if the name change occurs [by) [o)peration of state law." ~ 72 Fed. Reg. 64,930 (Nov. 19,2007) (final rule).
In light of this change in the FAM, the Department of State now invites the plaintiff Keith Toney to submit a renewal application (From DS-82) for a passport bearing his new name. In view of the circumstances, the Department is willing to process his application without the payment of an additional fee. To facilitate the processing of Mr. Toney's application without

payment of the usual fee, we ask that Mr. Toney submit his application together with recent photos and documentation supporting his name change, ill person. at the State Department Passport Agency in Boston, which is located al the following address:
Boston Passport Agency Thomas P. O'Neill Federal Building 10 Causeway Street, Suite 247 BOSlon, MA 02222-1094 Customer SelVice
should III relation to the above-captioned litigation, we believe this development renders moot the clai ms of plaintiffs Keith and Albert Toney against. the State Department. Please let us know whether you concUl", and whether you intend to omit these.claims upon filing an amended complaint. Please let me know if you have any questions regarding thc submission of a new passport application on behalf of the plainliffKeith Toney.
Sincerely,
2

 
 Nos. 12-13, 12-15

IN THE
Supreme Court of the United States

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Petitioner, v.

NANCY GILL, et al.,

Respondents.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Petitioners, v.
COMMONWEALTH OF MASSACHUSETTS, et al., Respondents.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
RESPONSE OF THE COMMONWEALTH OF MASSACHUSETTS IN SUPPORT OF CERTIORARI

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937 7294
PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663 6534

QUESTIONS PRESENTED Section 3 of the Defense of Marriage Act (DOMA) defines a “marriage” for all purposes as “only a legal union between one man and one woman as husband and wife.” Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7). It similarly defines a “spouse” as “a person of the opposite sex who is a husband or a wife.” Id. The question presented is: 1. Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. The Commonwealth of Massachusetts also presents the following questions as alternative bases for affirmance of the judgment: 2. Whether Section 3 of DOMA violates the Tenth Amendment. 3. Whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.
(i)

TABLE OF CONTENTS
Page QUESTIONS PRESENTED ............................................i TABLE OF AUTHORITIES ...........................................v STATEMENT ..................................................................... 1
A. Introduction ........................................................... 1 B. History Of Marriage Laws In The
United States......................................................... 3 C. The Federal Defense Of Marriage Act .............. 3 D. Marriage In The Commonwealth Of
Massachusetts........................................................ 5 1. DOMA’s direct effect on the Com-
monwealth....................................................... 5 2. DOMA’s effect on the Common-
wealth’s operation of veterans’ cemeteries ....................................................... 6 3. DOMA’s effect on Medicaid services in the Commonwealth.......................... 7 E. District Court Proceedings.................................. 9 F. Court Of Appeals Proceedings.......................... 12 REASONS FOR GRANTING THE WRIT................. 15 I. DOMA’S UNCONSTITUTIONALITY IS AN IMPORTANT QUESTION THAT SHOULD BE CONCLUSIVELY SETTLED BY THIS COURT............. 15 II. THE JUDGMENT CAN AND SHOULD BE AFFIRMED ON THE ALTERNATIVE BASES THAT DOMA VIOLATES THE TENTH AMENDMENT AND SPENDING CLAUSE.................... 16
(iii)

iv
TABLE OF CONTENTS—Continued
Page
A. DOMA Violates The Tenth Amendment ...................................................................... 16
B. DOMA Violates The Spending Clause............. 21
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause......................................... 22
2. DOMA also violates the Spending Clause because it bears no relation to the federal spending programs at issue........................................................... 26
CONCLUSION ................................................................. 27

v TABLE OF AUTHORITIES

CASES

Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ..................................................................... 22

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)......................... 3

Bell v. Tug Shrike, 332 F.2d 330 (4th Cir. 1964) ........... 19

Bennett v. Spear, 520 U.S. 154 (1997)............................. 16

Bond v. United States, 131 S. Ct. 2355 (2011) ......... 16, 20

Chicago Title & Trust Co. v. Forty-One ThirtySix Wilcox Building Corp., 302 U.S. 120 (1937) ............................................................................ 18

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ............................................. 25

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ..................................................... 24

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009) .................................................. 24, 25

Davis v. Prison Health Services, 679 F.3d 433 (6th Cir. 2012).............................................................. 25

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010) ........... 19

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).................................. 17

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) .............................................. 5

Gregory v. Ashcroft, 501 U.S. 452 (1991)........................ 20

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Haddock v. Haddock, 201 U.S. 562 (1906) ..................... 18
High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) ............................................................................. 25
Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ............. 18
Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315 (1935) ....................................... 18
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................................................................. 25
Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005).................. 25
Lyng v. Castillo, 477 U.S. 635 (1986)........................ 24, 25
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) ............................................... 24, 25
McCarty v. McCarty, 453 U.S. 210 (1981) ..................... 18
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ............................................................................. 25
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) ...................... 19, 21
New York v. United States, 505 U.S. 144 (1992)....... 17, 27
Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994) ............................................................ 16
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)............................................................ 25
Printz v. United States, 521 U.S. 898 (1997) ................. 17

vii
TABLE OF AUTHORITIES—Continued
Page(s)
Romer v. Evans, 517 U.S. 620 (1996).............................. 24
Slessinger v. Secretary of HHS, 835 F.2d 937 (1st Cir. 1987) .............................................................. 19
South Dakota v. Dole, 483 U.S. 203 (1987)............ passim
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)............... 25
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996)............................... 25
Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317 (5th Cir. 1986) .......... 19
United States v. American Library Ass’n, 539 U.S. 194 (2003) ............................................................ 23
United States v. Darby, 312 U.S. 100 (1941)............ 17, 20
United States v. Lopez, 514 U.S. 549 (1995)............. 17, 19
United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...................................... 24
Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008).............................................................. 25
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ............................................................................ 25
CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS, AND LEGISLATIVE MATERIALS
U.S. Const. art. I, § 8, cl. 1..................................................... passim amend. V.......................................................... 10, 12, 22 amend. X............................................................. passim amend. XIV ............................................................. 2, 22

viii
TABLE OF AUTHORITIES—Continued
Page(s)
8 U.S.C. § 1186a(b)(1)(A)(i) .............................................. 20
17 U.S.C. § 304(a)(1)(C) ...................................................... 4
26 U.S.C. § 106................................................................................ 4 § 6013.............................................................................. 4
Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(C)............................................................... 4
38 U.S.C. § 2408 ................................................................... 6
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7) ....................................................................... passim
38 C.F.R. pt. 39 ............................................................................... 6 § 39.10(a) ........................................................................ 6
H.R. Rep. No. 104-664 (1996)..................................... 3, 4, 5
Mass. Gen. Laws ch. 118E, § 61......................................... 9
OTHER AUTHORITIES
Federalist No. 45 (Madison)............................................. 17
Gressman, Eugene, et al., Supreme Court Practice (9th ed. 2007) ............................................... 16
Hayes, Christopher J., Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593 (1996) .......................... 19

STATEMENT
A. Introduction
The Commonwealth of Massachusetts, pursuant to its sovereign prerogative and the Massachusetts Declaration of Rights, has issued marriage licenses to samesex couples since 2004. These marriage licenses are indistinguishable from those issued to different-sex couples in all respects but one: they are singled out and rendered invalid for purposes of federal law under DOMA.
DOMA is an unwarranted expansion of federal power that violates the allocation of powers between the federal government and the States. The Commonwealth challenged DOMA on these grounds, which were adopted by the district court but not the court of appeals and which provide independent bases for ruling DOMA unconstitutional. DOMA expands federal power in two important and unjustifiable ways.
First, DOMA is an impermissible federal intrusion into the Commonwealth’s regulation of marriage, which this Court has consistently recognized is a power exclusively reserved to the States. Whereas most States recognize a single marital status that is given effect under federal law, DOMA effectively divides marriage in Massachusetts into two different statuses: married for all purposes for different-sex spouses, and married but “federally single” for same-sex spouses. This federal interference in the State regulation of domestic relations is unprecedented in the Nation’s history and violates the Tenth Amendment.
Second, DOMA forces the Commonwealth, as a condition of its receipt of federal funds in connection with the Commonwealth’s participation in the federal

2
Medicaid program and State Cemetery Grants Program, to engage in unconstitutional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Placing such a condition on the Commonwealth’s receipt of federal funds exceeds Congress’s power under the Spending Clause. DOMA also exceeds Congress’s Spending Clause powers because its disregard of lawful marriages bears no relationship to the purposes of the federal programs it affects, including Medicaid and the State Cemetery Grants Program.
The Commonwealth agrees with the court of appeals’ judgment, which correctly affirmed both the district court’s ruling that DOMA is unconstitutional and its injunction forbidding enforcement of DOMA in Massachusetts. However, the Commonwealth recognizes that DOMA’s unconstitutionality is a question of national significance and is likely to be addressed by this Court at some point. The Commonwealth believes that it is important that the Court address the matter in a case that presents the full complement of DOMA’s constitutional infirmities, including the Tenth Amendment and Spending Clause issues that are best raised by a State and, to date, have only been raised in this litigation. Accordingly, the Commonwealth agrees that certiorari should be granted in this case.1
1 The Commonwealth takes no position on whether BLAG has independent standing to petition for certiorari in this case. Sufficient review is assured by granting the United States’ petition and permitting BLAG to urge reversal. See U.S. Pet. (No. 12-15) at 12 n.3. Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in or-

3
B. History Of Marriage Laws In The United States
Since the Founding, the States have exclusively controlled the terms for entry into and exit from marriage. Pet. App. 89a-90a.2 State marriage rules have varied substantially, including “‘nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.’” Id. 86a. Several variations among State marriage laws were the subject of serious controversy, including restrictions regarding consanguinity, hygiene, age, and most notably race. Id. 87a. Nevertheless, the federal government has consistently given effect under federal law to States’ marital status determinations. Id. That changed with DOMA’s enactment in 1996.
C. The Federal Defense Of Marriage Act
Congress enacted DOMA out of fear that, following Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), Hawaii would recognize marriages between same-sex couples. See H.R. Rep. No. 104-664, at 2 (1996) (House Report) (“The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”).
der for this Court to reach those issues. See Conditional CrossPetition for a Writ of Certiorari (filed July 20, 2012).
2 References to “Pet. App.” are to the appendix to the United States’ petition in No. 12-15. References to “BLAG Pet. App.” are to the appendix to BLAG’s petition in No. 12-13.

4
When Congress enacted DOMA, however, no State in fact permitted same-sex couples to marry. House Report 3. Some voices in Congress warned that a federal definition of marriage would interfere with the States’ ability to define and regulate marriage:
Section three of the bill … represents for the first time in our history a Congressional effort, if successful, to deny states full discretion over their own marriage laws … [D]enying a marriage federal recognition substantially diminishes its legal force …. Thus, the bill is exactly the opposite of a states rights measure: the only real force it will have will be to deny a state and the people of that state the right to make decisions on the question of same sex marriage.
House Report 42 (dissenting views).
DOMA sweeps broadly across all federal laws, affecting all federal rights and responsibilities, however significant or minute, that involve marital status. For example, DOMA releases employers from the obligation of offering unpaid leave to care for an ailing samesex spouse under the Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(C); prevents same-sex spouses from filing joint federal income tax returns, often at substantial expense, 26 U.S.C. § 6013; requires a same-sex spouse receiving health benefits through his or her spouse to pay federal income tax on those benefits where a different-sex spouse’s identical benefits are excluded from taxable income, id. § 106; and prevents a surviving same-sex spouse from renewing and extending the term of his or her spouse’s copyright, 17 U.S.C. § 304(a)(1)(C). Notwithstanding this broad scope, Congress declined to consider how DOMA’s new federal

5
definition of marriage would affect the citizens affected by these and myriad other federal laws.3
D. Marriage In The Commonwealth Of Massachusetts
Since 2004, the Commonwealth has permitted all qualified couples, whether same-sex or different-sex, to marry. Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Pet. App. 90a. As the first State to achieve marriage equality, the Commonwealth has also been the first State to test Congress’s premise that DOMA would not interfere with a State’s ability to define and regulate marriage. The Commonwealth’s experience demonstrates the opposite and illustrates DOMA’s “serious adverse consequences … for states that choose to legalize same-sex marriage.” Pet. App. 4a.
1. DOMA’s direct effect on the Commonwealth
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples—marriages that, as a result of DOMA, are not recognized under federal law. Pet. App. 90a. In addition to invading powers reserved to the Commonwealth by the Constitution, DOMA’s non-recognition of these
3 See House Report 42 (dissenting views) (“That this bill’s consequences are not adequately analyzed was conceded by [its supporters who] argued that we must deny recognition to same sex marriages declared by states to be legal because we do not know what the implications of this will be for various federal programs.”); see also Pet. App. 18a (“[N]one of the testimony [at congressional hearings] concerned DOMA’s effects on the numerous federal programs at issue.”).

6
marriages imposes significant additional costs on the Commonwealth. For example, because health benefits for same-sex spouses of Commonwealth employees are considered taxable income for federal tax purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to these spouses. Pet. App. 100a. In addition, to comply with DOMA, the Commonwealth has incurred other costs to create and implement systems to identify employees who provide healthcare coverage to their same-sex spouses. Id. 101a.
2. DOMA’s effect on the Commonwealth’s operation of veterans’ cemeteries
The Commonwealth receives funding through the federal State Cemetery Grants Program for two veterans’ cemeteries located on Commonwealth-owned land in Agawam and Winchendon, Massachusetts. This program provides federal funding for the establishment, expansion, and improvement of veterans’ cemeteries owned and operated by a State. 38 U.S.C. § 2408; 38 C.F.R. pt. 39. The Commonwealth received over $19 million in federal funds to construct and expand these cemeteries and has also received nearly $1.5 million in federal funds to cover costs associated with burying veterans in these cemeteries. Pet. App. 91a-92a.
A condition on the Commonwealth’s receipt of these funds is that the cemeteries must “‘be operated solely for the interment of veterans, their spouses, surviving spouses, and [certain of their] children.’” Pet. App. 93a (quoting 38 C.F.R. § 39.10(a)) (emphasis added). Failure to comply with this condition could result in the cemetery no longer qualifying as a veterans’ cemetery, which would allow the United States to re-

7
capture all of the funds it has provided to the Commonwealth for that cemetery. Id. 93a.
In 2004, in response to the Commonwealth’s inquiry, the United States Department of Veterans Affairs informed the Commonwealth that, should it elect to bury the same-sex spouse of a veteran in one of its two veterans’ cemeteries, that cemetery would not comply with federal law, and the United States could recapture all of the federal funding provided in connection with that cemetery. Pet. App. 93a-94a.
In 2007, the Commonwealth approved an application for burial in the Winchendon cemetery submitted by a decorated United States Army veteran and his same-sex spouse. Pet. App. 118a-119a. The Commonwealth intends to honor their wish to be buried together in a veterans’ cemetery. The United States conceded below that, as a result of that decision, the Commonwealth is subject to the threat of recapture of federal funds.
3. DOMA’s effect on Medicaid services in the Commonwealth
The federal Medicaid program, enacted in 1965 as Title XIX of the Social Security Act, is a federal-State partnership designed to offer subsidized medical services to certain qualifying low-income individuals. Under Medicaid, the federal government provides funds to States to operate the program, so long as the States comply with the Medicaid statute and regulations. The Commonwealth’s Medicaid program, known as MassHealth, receives billions of dollars annually in federal reimbursement for the benefits it pays out under this program. Pet. App. 95a-96a.

8
An individual’s marital status is often relevant to eligibility for Medicaid (and therefore MassHealth) benefits because spousal income and assets are typically combined to determine whether an applicant meets an eligibility threshold. A person who would be eligible for benefits if considered as single might be ineligible when assessed as part of a married couple, and vice versa. Because DOMA requires MassHealth to ignore same-sex marriages for purposes of Medicaid, in some instances it requires the Commonwealth to extend coverage to individuals who would not qualify if their marriages were recognized. In other instances, DOMA forces the Commonwealth to deny to same-sex spouses the coverage that it extends to identicallysituated different-sex spouses. Pet. App. 96a.4
In 2008, the Commonwealth enacted the MassHealth Equality Act, which provides that, in administering MassHealth, “no person who is recognized as a spouse under the laws of the commonwealth shall be
4 For example, the incomes of a different-sex married couple with one spouse earning $65,000 and the other $13,000 are combined to determine MassHealth eligibility. The couple’s combined income ($78,000) is too high for either spouse to be eligible for MassHealth. But if the spouses are of the same sex and the marriage is disregarded under DOMA, the spouse earning $13,000 would be eligible for MassHealth benefits. Conversely, in a household consisting of two different-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year, the couple’s combined income ($40,000) falls below the $43,716 minimum threshold for couples and both spouses are eligible for healthcare under MassHealth. If the spouses are of the same sex and the marriage is disregarded under DOMA, only the spouse earning $7,000 per year would be eligible for Medicaid coverage, because only that spouse’s income falls below the federal minimum for individuals. Pet. App. 97a-98a.

9
denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal non-recognition of spouses of the same sex.” Mass. Gen. Laws ch. 118E, § 61. As required by the MassHealth Equality Act, the Commonwealth accordingly follows its definition of marriage, not DOMA’s, in determining eligibility for MassHealth, including denying coverage to individuals who would be eligible for coverage if they were considered as a single person. The United States has informed the Commonwealth that DOMA “‘preclude[s] recognition of same-sex couples as ‘spouses’ in the Federal program’” and warned the Commonwealth that it “‘must pay the full cost, including the cost of administration of a program that does not comply with Federal law.’” Pet. App. 99a. As with the veterans’ cemeteries program, the United States conceded below that the Commonwealth is subject to the threat of recapture of these federal funds.
E. District Court Proceedings
The Commonwealth, by and through its Attorney General, filed a declaratory judgment action challenging the application of DOMA in Massachusetts under the Spending Clause and the Tenth Amendment. With regard to the Tenth Amendment, the Commonwealth claimed that DOMA invades the reserved powers of the States, thereby exceeding Congress’s power and violating the Tenth Amendment. With regard to the Spending Clause, the Commonwealth claimed that DOMA violated the Spending Clause by requiring it to violate the Equal Protection Clause as a condition of receiving and retaining federal funding for its Medicaid program and veterans’ cemeteries. Pet. App. 109a. The Commonwealth also argued that DOMA fails the “relatedness” (or germaneness) limitation on the Spending

10
Clause articulated in South Dakota v. Dole, 483 U.S. 203 (1987), because DOMA’s disregard of same-sex marriages bears no relationship to the purposes of the Medicaid and veterans’ cemetery programs. Pet. App. 110a-111a.
The United States moved to dismiss. The Commonwealth cross-moved for summary judgment, adducing detailed evidence demonstrating, inter alia, that State determinations of marital status have traditionally governed not only under State law, but also under federal law. Pet. App. 113a (district court decision relying on the Commonwealth’s “extensive affidavit on the history of marital regulation”). For example, the evidence showed that “the federal government consistently relied on state determinations with regard to marriage” even when “a great deal of tension surrounded the issue of interracial marriage.” Id. 87a, 90a. The Commonwealth also provided evidence that sexual orientation satisfies the factual predicates for the application of heightened scrutiny under this Court’s precedent. Dist. Ct. Dkt. Nos. 36, 37, 38. The United States did not contest this or any other of the Commonwealth’s evidence, nor did it offer any evidence of its own.
In a parallel case, Gill v. Office of Personnel Management, a group of individuals who are or had been lawfully married in Massachusetts to someone of the same sex sued for certain federal benefits that had been denied them through operation of DOMA, asserting that the denial violated their equal protection rights under the Fifth Amendment. The cases were not formally consolidated in the district court, but they were heard by the same district judge and were decided on the same day.

11
The district court denied the United States’ motion to dismiss and granted summary judgment to the Commonwealth and the Gill plaintiffs. In Gill, the court concluded that DOMA violates the equal protection component of the Due Process Clause because no conceivable rational basis for DOMA exists. Pet. App. 70a-71a. In its separate opinion in the Commonwealth’s case, the district court concluded that DOMA violates the Spending Clause by imposing an unconstitutional condition on the Commonwealth’s receipt of federal funds. As the court explained, “DOMA induces the Commonwealth to violate the equal protection rights of its citizens” and thereby “imposes an unconstitutional condition on the receipt of federal funding,” in contravention of “a well-established restriction on the exercise of Congress’ spending power.” Id. 110a. The district court also acknowledged the pressure to comply with DOMA that results from the fact that substantial federal funds are conditioned on that compliance. See, e.g., id. 103a (“[T]he federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran [in one of its veterans’ cemeteries].”). The district court did not reach the Commonwealth’s alternative argument that DOMA violates the Spending Clause by imposing a condition that is not germane to the federal spending programs at issue. Id. 110a-111a.
With regard to the Tenth Amendment, the district court found that, by enacting DOMA, “Congress has intruded on the exclusive province of the state to regulate marriage.” Pet. App. 105a. The district court observed that marital status definitions have always been “a core area of state sovereignty” (id. 111a), and family law generally “is often held out as the archetypal area

12
of local concern” (id. 113a). Indeed, the court noted that marital status determinations have been the sole province of the States since before the Founding, which has resulted in an evolving “checkerboard of rules and restrictions on the subject.” Id. 114a. The district court concluded Congress may not “siphon off a portion of that traditionally state-held authority for itself” without running afoul of the Tenth Amendment. Id. 104a. Accordingly, the district court held that DOMA encroaches upon the Commonwealth’s sovereign authority “to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status.” Id. 120a.
The district court entered a judgment that “[DOMA] is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.” Pet. App. 124a.
F. Court Of Appeals Proceedings
The United States appealed. At the United States’ request, the court of appeals consolidated the Gill case with the Commonwealth’s case. The United States filed an opening brief in the consolidated cases defending DOMA’s constitutionality under the Fifth Amendment’s equal protection component, the Tenth Amendment, and the Spending Clause. Before the Commonwealth and the Gill plaintiffs filed their responsive briefs, the United States informed the court of appeals that the President and Attorney General had concluded that equal protection challenges to classifications based on sexual orientation should be evaluated under heightened scrutiny, that Section 3 of DOMA could not survive that level of scrutiny, and that the United

13
States would therefore cease its defense on equal protection grounds of the constitutionality of Section 3. Pet. App. 6a. BLAG then sought and was granted leave to intervene as an appellant in the consolidated cases in order to defend DOMA against the equal protection challenge.5
The United States then filed a superseding brief, asserting that DOMA should be evaluated under a heightened equal protection standard, which the United States agreed DOMA could not satisfy. The United States’ superseding brief also agreed that, because DOMA violates equal protection, it necessarily violates the Spending Clause by imposing an unconstitutional condition on the Commonwealth’s receipt of federal funds. However, the United States continued to argue that DOMA violates neither the Tenth Amendment nor the Spending Clause’s germaneness requirement.
BLAG filed a brief defending DOMA on equal protection grounds and did not address the district court’s ruling that DOMA violates the Tenth Amendment and Spending Clause.
The court of appeals affirmed the district court’s judgment. BLAG Pet. App. 30a-31a. In its opinion in the consolidated cases, the court of appeals acknowledged that DOMA “burden[s] the choice of states like Massachusetts to regulate the rules and incidents of
5 After BLAG was permitted to intervene, the Gill plaintiffs moved for initial hearing en banc, and the United States later joined in the request. The Commonwealth and BLAG neither supported nor opposed the request. The court of appeals denied initial hearing en banc by an equally divided vote.

14
marriage” and carries “potentially serious adverse consequences” for States that have legalized same-sex marriage. Pet. App. 4a, 16a.
With regard to the Tenth Amendment, the court of appeals acknowledged the district court’s finding that, before DOMA’s enactment, marital status determinations were the sole province of the States. Pet. App. 15a. However, the court of appeals stated that DOMA did not run afoul of the Tenth Amendment because it did not “directly dictate the internal operations of state government.” Id. 16a.
The court of appeals also found that DOMA did not violate the Spending Clause because it did not “run afoul of the ‘germaneness’ requirement.” Pet. App. 16a. The court did not address the Commonwealth’s primary Spending Clause argument: that by conditioning federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth disregard lawful same-sex marriages, DOMA makes federal funds turn on a violation of equal protection and, accordingly, runs afoul of the rule that Congress cannot condition federal funds on a State’s violation of an independent constitutional requirement. Dole, 483 U.S. at 206.
Although the court of appeals declined to rule that DOMA violates the Tenth Amendment, the “federalism concerns” underlying the Commonwealth’s Tenth Amendment arguments were integral to the court’s holding that DOMA violates the guarantee of equal protection. The court noted that “DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation— domestic relations and the definition and incidents of lawful marriage” (Pet. App. 11a) and explained that “in

15
areas where state regulation has traditionally governed, the [Supreme] Court may require that the federal government interest in intervention be shown with special clarity” (id. 15a).
The court of appeals’ judgment in the consolidated cases states: “The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.” BLAG Pet. App. 30a-31a.
REASONS FOR GRANTING THE WRIT
I. DOMA’S UNCONSTITUTIONALITY IS AN IMPORTANT QUESTION THAT SHOULD BE CONCLUSIVELY SETTLED BY THIS COURT
The Commonwealth agrees with the court of appeals’ judgment that Section 3 of DOMA is unconstitutional and normally would oppose further review in order to ensure that the judgment takes effect as soon as possible. However, the Commonwealth recognizes that the question is one of national importance and that this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or nonenforcement of DOMA throughout the country. On that assumption, the Commonwealth believes that the Court should conduct that review in the context of a case that presents the full range of constitutional challenges to DOMA, including challenges under the Tenth Amendment and Spending Clause that are best presented by a State. The Commonwealth accordingly agrees that the Court should grant review in this case and affirm the judgment of the court of appeals.

16
II. THE JUDGMENT CAN AND SHOULD BE AFFIRMED ON THE ALTERNATIVE BASES THAT DOMA VIOLATES THE TENTH AMENDMENT AND SPENDING CLAUSE
In its review of the court of appeals’ judgment, this Court can and should consider holding DOMA unconstitutional based on the additional, alternative grounds that DOMA violates the Tenth Amendment and the Spending Clause. Although the court of appeals rejected these arguments in the decision below (Pet. App. 16a-17a), the Commonwealth can “defend the judgment on any ground supported by the record.” Bennett v. Spear, 520 U.S. 154, 166 (1997); see also Gressman et al., Supreme Court Practice § 6.35 (9th ed. 2007).6
A. DOMA Violates The Tenth Amendment
The court of appeals properly recognized the substantial impairment of State sovereignty wrought by DOMA. Pet. App. 15a; see Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (“The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.”). The court stopped short, however, of finding that DOMA violates the Tenth Amendment based on the mistaken rationale that a Tenth Amendment violation occurs “only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government.” Pet. App. 16a. The court of ap-
6 As stated in note 1 above, the Commonwealth is also filing a conditional cross-petition in the event the Court views these arguments as potentially expanding the court of appeals’ judgment. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994) (cross-petition unnecessary “so long as [the prevailing] party seeks to preserve, and not to change, the judgment”).

17
peals’ narrow reading of the Tenth Amendment is inconsistent with this Court’s jurisprudence.
The Tenth Amendment provides that Congress is not authorized to enact legislation in areas reserved to the States. U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).7 This Court has in recent decisions confirmed that the Tenth Amendment serves as a substantive check on Congress’s exercise of legislative power, repeatedly addressing the proper balance of authority between federal and State government. See, e.g., Printz v. United States, 521 U.S. 898, 920-921 (1997); see also United States v. Lopez, 514 U.S. 549, 589 (1995) (Thomas, J., concurring) (expressing concern that broad “construction[s] of the scope of congressional authority … com[e] close to turning the Tenth Amendment on its head”). The Tenth Amendment is violated when Congress purports to regulate a
7 See, e.g., United States v. Darby, 312 U.S. 100, 124 (1941) (purpose of Tenth Amendment was “to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers”); see also New York v. United States, 505 U.S. 144, 156 (1992) (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“States remain sovereign as to all powers not vested in Congress or denied them by the Constitution[.]”); Federalist No. 45 (Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”).

18
“domain of activity set apart by the Constitution as the province of the states.” Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 338 (1935) (Cardozo, J.).
As the court of appeals properly recognized, domestic relations constitute one such domain. Pet. App. 15a (“DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad policepower authority over morality and culture.”). This Court has also repeatedly recognized that “‘[t]he whole subject of the domestic relations of husband and wife … belongs to the laws of the States and not to the laws of the United States.’” McCarty v. McCarty, 453 U.S. 210, 220 (1981) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)); see also Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce …. [T]he Constitution delegated no authority to the Government of the United States on th[at] subject.”).
The uncontroverted record in the district court established that the States’ exclusive authority over domestic relations and marital status has never been limited to defining its contours for purposes of State law. Cf. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 127-129 (1937) (State has exclusive authority over corporate status of Statechartered corporation for both State and federal purposes). Rather, State marital determinations have controlled for purposes of both State law and federal law to the extent Congress chooses to predicate federal law on marital status. Indeed, prior to DOMA, Congress had never refused to recognize a State determination of

19
marital status. Pet. App. 60a-61a n.126; see also id. 15a (“Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime.”); National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (opinion of Roberts, C.J.) (“[S]ometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s action. At the very least, we should ‘pause to consider the implications’ … when confronted with such new conceptions of federal power.” (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010), and Lopez, 514 U.S. at 564 (first three alterations in original))).8
By imposing a federal definition of marriage, DOMA impermissibly creates two marital statuses among Massachusetts citizens. While different-sex married couples remain married for all purposes, same-
8 See Hayes, Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593, 1602-1603 (1996); see also, e.g., Slessinger v. Secretary of HHS, 835 F.2d 937, 939 (1st Cir. 1987) (rejecting application of federal common law rule to eligibility determination under Social Security Act and instead deferring to State rule: “This conclusion is strongly reinforced by the settled principle that matters of divorce and marital status are uniquely of state, not federal concern. It would do violence to this principle for a court to apply federal law under the Act to give effect to a foreign divorce decree that would not be honored in the state of domicile.” (citations omitted)); Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317, 1318-1320 (5th Cir. 1986) (rejecting application of federal common law rule in eligibility determination under federal maritime law: “We are aware of few instances in which state interests are accorded more deference by federal courts than in defining familial status.”); Bell v. Tug Shrike, 332 F.2d 330, 334-336 (4th Cir. 1964) (same).

20
sex couples are married under State law, but federally single. The impact of DOMA’s rule of exclusion is substantial, affecting many aspects of these citizens’ lives, from healthcare to employment to taxes. This imposition of two different types of marriage within Massachusetts precludes the Commonwealth from “exercis[ing] fully [its] reserved powers.” United States v. Darby, 312 U.S. 100, 124 (1941).
DOMA is therefore a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation, supplanting States’ settled, uninterrupted authority to define marital status for all purposes. Because the Tenth Amendment “reserve[s]” the regulation of marriage to “the States,” DOMA’s federal definition of marriage exceeds the limited powers conferred on the federal government by the Constitution. See Bond, 131 S. Ct. at 2366 (“Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.” (citation omitted)); see also Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (“States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.”).9
9 As the court of appeals correctly acknowledged, this is not to say that Congress has no interest in “who counts as married,” but rather that this interest can be satisfied by Congress’s legislation “in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i),” where Congress has added requirements beyond marriage. Pet. App. 15a. Moreover, every marriage can at least potentially satisfy such additional federal criteria. DOMA’s omnibus approach, effectively nullifying a

21
This Court should grant certiorari to clarify that Congress intrudes into a realm reserved to the States when it legislates in an area of traditional State concern such as defining marriage and to correct the court of appeals’ unduly restrictive application of the Tenth Amendment.
B. DOMA Violates The Spending Clause
Congress’s power under the Spending Clause (U.S. Const. art. I, § 8, cl. 1) includes the ability to condition States’ receipt of federal funds upon compliance with federal directives. While this power is broad, it is not unfettered, and is circumscribed by the limitations articulated in South Dakota v. Dole, 483 U.S. 203 (1987). A valid exercise of the spending power must be (1) “in pursuit of the general welfare”; (2) unambiguous; (3) related to “‘the federal interest’” in furtherance of which the spending power is being exercised; (4) not independently barred by other constitutional provisions; and (5) not “so coercive as to pass the point at which pressure turns into compulsion.” Id. at 207-208, 211 (internal quotation marks omitted); see also National Fed’n of Indep. Bus., 132 S. Ct. at 2601-2603 (opinion of Roberts, C.J.); id. at 2659 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (“our cases have long held that the power to attach conditions to grants to the States [under the Spending Clause] has limits”).
The Commonwealth argued below that DOMA runs afoul of two of these restrictions. First, it conditions federal funds on the Commonwealth’s violation of another constitutional provision, namely the Equal Pro-
large category of marriages for all federal purposes, contrasts starkly with these narrow, program-specific statutory criteria.

22
tection Clause of the Fourteenth Amendment.10 Second, DOMA fails the “relatedness” (or germaneness) requirement articulated by Dole because its disregard of State marriage determinations bears no relationship to the federal statutes and regulations that it affects— notably here, Medicaid and the State Cemetery Grants Program. Both grounds provide independent bases for invalidating DOMA.
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause
By conditioning the Commonwealth’s receipt of federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth differentiate between same-sex and differentsex married couples, DOMA forces the Commonwealth to violate the Equal Protection Clause and, accordingly, exceeds Congress’s power under the Spending Clause.
This Court clearly ruled in Dole that “a grant of federal funds conditioned on invidiously discriminatory state action … would be an illegitimate exercise of Congress’ broad spending power.” 483 U.S. at 210-211; see
10 As the lower courts, the United States, and BLAG all agree, this Court’s approach “to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (internal quotation marks omitted). Thus, if DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment when enforced by the federal government, it also violates the Equal Protection Clause of the Fourteenth Amendment when enforced by a State.

23
also United States v. American Library Ass’n, 539 U.S. 194, 203 (2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. But Congress may not ‘induce’ the recipient ‘to engage in activities that would themselves be unconstitutional.’” (citation omitted; quoting Dole, 483 U.S. at 210)).
A ruling that DOMA violates equal protection thus compels a finding that DOMA also violates the Spending Clause. In the context of the State Cemetery Grants Program, DOMA requires the Commonwealth to treat the same-sex spouse of a veteran who wishes to be buried with his or her same-sex spouse in a cemetery funded under the program differently from how it treats a similarly-situated different-sex spouse. Likewise, DOMA forces the Commonwealth to differentiate between individuals in same-sex marriages and similarly-situated individuals in different-sex marriages in its administration of Medicaid.
The court of appeals did not discuss this aspect of the Commonwealth’s Spending Clause argument. But the court’s statement that DOMA does not violate the Spending Clause (Pet. App. 16a-17a) cannot be reconciled with its finding that DOMA violates equal protection. Indeed, neither the United States nor BLAG has ever disputed that if DOMA violates equal protection, it must also violate the Spending Clause.
The Commonwealth and the Gill Respondents offered the lower courts several means by which an equal protection violation could be found. First, Respondents demonstrated that no rational basis plausibly supported DOMA’s blanket non-recognition of marriages lawfully contracted under State law, whether one considered the actual interests invoked by Congress at the

24
time or the post hoc justifications now marshaled by BLAG in this litigation.
Second, the legislative record demonstrates that DOMA’s underlying (and in some cases expressly stated) purpose was impermissible animus towards gays and lesbians, a factor that this Court has suggested justifies particularly exacting scrutiny. Romer v. Evans, 517 U.S. 620, 635 (1996) (invalidating provision that was nothing more than a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (law enacted based on “mere negative attitudes, or fear” invalid); United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, (1973) (law invalid because it was motivated by a “bare congressional desire to harm a politically unpopular group”).
Third, the Commonwealth, like the United States and the Gill Respondents, asserted that DOMA’s classification based on sexual orientation should be subject to heightened scrutiny, a proposition the court of appeals panel believed was off-limits to it due to prior circuit precedent in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). Pet. App. 10a. This Court is not so constrained, however. Under this Court’s jurisprudence, a classification is subject to heightened scrutiny if (1) the targeted class has suffered a history of discrimination, and (2) the characteristics that distinguish the group are unrelated to their ability to contribute to society. See Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-314 (1976) (per curiam)). In determining the applicability of heightened scrutiny, the Court at times has also considered (3) whether members of the

25
class exhibit immutable distinguishing characteristics, and (4) whether the class is a minority or evidences political powerlessness requiring protection from the majoritarian political process. Murgia, 427 U.S. at 313314. As the uncontroverted record below demonstrated, gays and lesbians meet each of these requirements. See supra p.11.11
The court of appeals’ opinion offered yet a fourth route, viewing the weaknesses of the justifications offered for DOMA in light of the Commonwealth’s federalism arguments and the unprecedented nature of DOMA’s interference in State regulation of marital status. This overextension of congressional power, the court ruled, warranted a more robust review under
11 Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multifactor analysis that Lyng requires. Neither Cook nor most of the other cases cited by BLAG for the proposition that heightened scrutiny should not apply to classifications based on sexual orientation discusses the heightened scrutiny factors in any substantial way. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Witt v. Department of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-1114 & n.9 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Secretary of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005); Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996). Many such cases, including Cook, involved military policies, which are given special judicial deference. See Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 684-685 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 577 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Cook, 528 F.3d at 57-58.

26
equal protection principles—a review DOMA could not survive.
Any of these routes leads to the same conclusion: DOMA’s discrimination on the basis of sexual orientation is unconstitutional, and by requiring Massachusetts to carry out such discrimination against its own citizens as a condition of receiving and retaining federal funds, DOMA violates the Spending Clause.
2. DOMA also violates the Spending Clause because it bears no relation to the federal spending programs at issue
DOMA separately violates the Spending Clause’s requirement that federal funds not be limited by conditions “unrelated to the federal interest in [the affected] national projects or programs.” Dole, 483 U.S. at 207 (internal quotation marks omitted). The court of appeals believed that this requirement was “not implicated” because DOMA “merely defines the terms of the federal benefit.” Pet. App. 16a. If that were true, however, Dole’s germaneness requirement would be a dead letter, because any irrelevant condition may be cast as a limit on “the terms of the federal benefit.” In Dole, the germaneness requirement was met because the goal of the federal highway funds at issue was to ensure safe interstate highway travel. That goal was promoted by the condition that States adopt a uniform minimum drinking age: “the lack of uniformity in the States’ drinking ages created an incentive to drink and drive because young persons commut[e] to border States where the drinking age is lower.” 483 U.S. at 209 (internal quotation marks omitted).
Here, unlike in Dole, neither the United States nor the court of appeals has ever provided a plausible explanation of how the purposes of the programs affected

27
by DOMA are served by refusing to recognize marriages lawfully contracted under Massachusetts law. Medicaid is designed to provide subsidized medical care to needy individuals, yet DOMA compels the Commonwealth to provide and pay for coverage of individuals in high-income families because their potentially disqualifying marriages cannot be recognized for purposes of federal Medicaid eligibility. And no colorable argument can be made that DOMA’s prohibition on burying a decorated veteran with his husband is “related” to a program that exists for the purpose of burying veterans with their loved ones.
DOMA’s disregard of lawful marriages is not “reasonably related to the purpose[s]” of these programs. New York v. United States, 505 U.S. 144, 172 (1992) If anything, it is directly at odds with them. Accordingly, as a limitation on the receipt of federal funds, it cannot pass even the most lenient test for “relatedness,” and this Court should correct the court of appeals’ erroneous ruling to the contrary.
CONCLUSION
The Court should grant certiorari and affirm the judgment of the court of appeals.

Respectfully submitted.

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109
ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

JULY 2012

 
 No. 12-13

In The
Supreme Court of the United States
________________
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Petitioner, v.
NANCY GILL, ET AL., Respondents.
________________
On Petition for a Writ of Certiorari to the United States Court of Appeals for__t_h_e__F_i_r_s_t_C__i_r_c_uit

REPLY BRIEF FOR PETITIONER ________________

KERRY W. KIRCHER

PAUL D. CLEMENT

General Counsel

Counsel of Record

WILLIAM PITTARD

H. CHRISTOPHER BARTOLOMUCCI

Deputy General Counsel NICHOLAS J. NELSON

CHRISTINE DAVENPORT BANCROFT PLLC

Senior Assistant Counsel 1919 M Street, N.W.

TODD B. TATELMAN

Suite 470

MARY BETH WALKER

Washington, D.C. 20036

Assistant Counsels

(202) 234-0090

OFFICE OF GENERAL COUNSEL pclement@bancroftpllc.com

U.S. HOUSE OF

REPRESENTATIVES

219 Cannon House Office Bldg.

Washington, D.C. 20515

(202) 225-9700

Counsel for Petitioner

TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
REPLY BRIEF FOR PETITIONER .......................... 1
1. The House’s Petition for Certiorari, No. 12-13 ...................................................... 2
2. The Department’s Petition, No. 12-15 ...................................................... 3
3. Massachusetts’ Conditional Cross-Petition, No. 12-97 ............................. 4
4. The Department’s Petition for Certiorari Before Judgment in OPM v. Golinski, No. 12-16 ........................ 4
5. The Individual Plaintiff’s Petition for Certiorari Before Judgment in Windsor v. United States, No. 12-63........... 5
6. The Individual Plaintiffs’ Petition for Certiorari Before Judgment in Pedersen v. OPM, No. 12-231...................... 6
CONCLUSION ........................................................... 8

ii
TABLE OF AUTHORITIES
Cases
Chadha v. INS, 462 U.S. 919 (1983) ................................................. 3
Golinski v. U.S. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) ..................... 4
Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012)........................................ 2
Pedersen v. OPM, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012).......................................... 7
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) ...................... 5
Rule
S. Ct. R. 11.................................................................. 5
Other Authorities
House’s Br. in Opp., Windsor v. United States, No. 12-63 (Aug. 31, 2012) ........................................ 6
House’s Br. in Opp., OPM v. Golinski, No. 12-16 (Aug. 31, 2012) ........................................ 5

REPLY BRIEF FOR PETITIONER
The Petition filed in this case by the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“the House”) squarely presents a single important question that manifestly merits this Court’s review—namely, whether Section 3 of the Defense of Marriage Act (“DOMA”) comports with constitutional equal protection principles. Every party to this case agrees that this question merits plenary review. The only question is which petition or petitions this Court should grant to review this surpassingly important question. The House’s Petition in No. 12-13 unleashed a veritable torrent of subsequently-filed petitions, five at current count with more promised. Most of those petitions were extraordinary requests for certiorari before judgment, and all were filed by parties who prevailed in the lower courts. The House’s first-filed Petition in No. 12-13 is an ideal vehicle for addressing DOMA’s constitutionality. It is a Petition filed after judgment by the party whose arguments failed to persuade the Court of Appeals.
There is no need for the Court to look further and reach for another petition in an unusual posture, filed by a prevailing party, or both. Doing so only would complicate needlessly this Court’s review of DOMA’s constitutionality because the question of DOMA’s constitutionality does not turn on the facts of a particular case. Moreover, as the House has explained in its other filings, each of the other DOMA petitions presents one or more vehicle problems that do not encumber the House’s petition. The proper course here is also the most

2
straightforward course: The Court should simply grant the House’s Petition.
1. The House’s Petition for Certiorari, No. 12-13
The House’s Petition seeks review of the First Circuit’s judgment in Massachusetts v. United States Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012). No party opposes the House’s Petition. Massachusetts and the individual plaintiffs acquiesced in the grant of certiorari. See Resp. of Commw. of Mass. in Supp. of Cert. 27, Nos. 12-13 & 12-15 (July 20, 2012); Br. in Resp. of Nancy Gill et al. 39, Nos. 12-13 & 12-15 (Aug. 2, 2012). The Department did not oppose or respond to the House’s Petition.
Of all the DOMA petitions before this Court, the House’s Petition is the only one filed by the party whose arguments failed to persuade the lower courts. It thus is the only petition that would facilitate this Court’s review by allowing the losing party the traditional benefit of an opening and reply brief. It is also the only petition that reflects the true alignment of parties in DOMA litigation. The House—the only party defending DOMA’s constitutionality and the only party aggrieved by the judgment below—is the Petitioner in No. 12-13. The Department, Massachusetts, and the individual plaintiffs—all of whom contend that DOMA is unconstitutional and sought the judgment below— are the Respondents. While other petitions would require a post-grant realignment of the parties to reflect the reality that only the House defends DOMA, the House’s Petition already reflects that reality. In short, the House’s Petition is the ideal and traditional vehicle for this Court’s review: A

3
petition filed after judgment by the party whose arguments failed to persuade the Court of Appeals.
2. The Department’s Petition, No. 12-15
The Department’s Petition in No. 12-15 also seeks review of the First Circuit’s judgment. But the Department’s Petition does not present any issue for this Court’s review that is not better presented in the House’s Petition. See House’s Br. in Opp. 15, No. 12-15 (Aug. 31, 2012). Thus, the Department’s Petition is unnecessary.
Furthermore, because the Department received all the relief it sought from the First Circuit, it is far from clear that the Department has standing to seek review of that judgment, and granting the Department’s Petition would require the Court to decide that question. See id. at 16-20. In contrast, this Court has made clear that the House is “both a proper party * * * and a proper petitioner” in a case such as this one. Chadha v. INS, 462 U.S. 919, 939 (1983). See House’s Br. in Opp. 20-23, No. 12-15.
Granting the Department’s Petition would also needlessly complicate the proceedings because it would leave parties attacking DOMA on both sides of the “v.” in this Court—a situation that would have to be remedied by realigning them to the precise positions where they already are in the House’s Petition. See id. at 24-25. Since the Department is essentially acting as an amicus curiae supporting DOMA’s challengers, it would make little sense to invite these procedural complications by granting its superfluous and problematic Petition. See id.

4
3. Massachusetts’ Conditional Cross-Petition, No. 12-97
Massachusetts’ Conditional Cross-Petition, No. 1297, presents two questions: Whether Section 3 of DOMA “violates the Tenth Amendment” and whether it “violates the Spending Clause.” Cond. Cross-Pet. for Cert. i, No. 12-97 (July 20, 2012). The First Circuit rejected both claims. See Pet. App. 15a17a, No. 12-13.
There is no need to grant the Conditional CrossPetition because Massachusetts is free to raise its federalism arguments as alternative grounds for affirming the judgment below. See House’s Br. in Opp., No. 12-97 (Aug. 23, 2012). Granting the CrossPetition would only lead to excessive briefing on the federalism claims that the First Circuit rejected, and distract from the equal protection claim that the court below accepted.
4. The Department’s Petition for Certiorari Before Judgment in OPM v. Golinski, No. 1216
The Department also seeks certiorari before judgment in No. 12-16, a case in which a federal district judge declared DOMA unconstitutional. See Golinski v. U.S. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012). The House has appealed the Golinski decision, and its appeal is pending in the Ninth Circuit.
The Department’s Petition for Certiorari Before Judgment in Golinski presents the same question regarding DOMA’s constitutionality presented by the House’s Petition in No. 12-13 (and the Department’s Petition in No. 12-15). The Golinski Petition is thus

5
wholly superfluous. See House’s Br. in Opp. 16-17, No. 12-16 (Aug. 31, 2012). Furthermore, the Department has not come close to carrying the heavy burden of showing that granting certiorari before judgment in Golinski “is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” S. Ct. R. 11. See House’s Br. in Opp. 17-19, No. 12-16.
The Golinski Petition also presents the same vehicle problem as the Department’s Petition in the First Circuit case, No. 12-15: The district court granted the relief the Department had sought (i.e., a judgment that DOMA is unconstitutional), and thus granting the Golinski Petition would require this Court to decide whether the Department has appellate standing. See House’s Br. in Opp. 16-20, No. 12-15; House’s Br. in Opp. 20, No. 12-16. And, in all events, because the Department’s arguments persuaded the District Court, granting that Petition would also require this Court to re-align the parties for purposes of briefing and argument.
5. The Individual Plaintiff’s Petition for Certiorari Before Judgment in Windsor v. United States, No. 12-63
Once the Department took the extraordinary step of seeking certiorari before judgment in Golinski, private parties, including the individual plaintiff in Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012), followed suit.
There is no reason to grant the Petition for Certiorari Before Judgment in Windsor, No. 12-63, as it presents the same question presented by the

6
House’s Petition. See House’s Br. in Opp. 13-14, No. 12-63 (Aug. 31, 2012). There are, however, good reasons to prefer the House Petition over the Windsor Petition: Like the Department’s Petition in Golinski, the Windsor Petition does not come close to meeting the demanding standard for certiorari before judgment set by this Court’s Rule 11. See id. at 16-18, 24-26. And in common with all the DOMA petitions filed by prevailing parties, i.e., all the petitions except for the House’s petition: (1) Ms. Windsor’s appellate standing to seek review of the district court’s favorable decision is at least questionable; and (2) granting the Windsor Petition would require the Court to re-align the parties for briefing and argument.
In addition, the Windsor Petition is uniquely problematic in that Ms. Windsor’s standing turns on a sensitive question of New York state law that has been expressly reserved by the New York Court of Appeals, and granting certiorari before judgment would bypass the first court with authority to certify that question to New York’s highest court. See id. at 18-23. There is no reason to inject that state-law question into this Court’s consideration of DOMA’s constitutionality when the House’s Petition does not raise any analogous difficulty.
6. The Individual Plaintiffs’ Petition for Certiorari Before Judgment in Pedersen v. OPM, No. 12-231
Like the Golinski and Windsor Petitions, the Petition in No. 12-231 seeks certiorari before judgment following a district court decision declaring DOMA unconstitutional. See Pedersen v. OPM, No.

7
10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012). The Pedersen Petition was filed on August 21, 2012, by the individual plaintiffs in that case; the House’s brief in opposition is forthcoming. But the reasons to prefer the House’s Petition to this Petition for Certiorari Before Judgment by the party who prevailed in the district court are familiar and obvious.
The Pedersen plaintiffs offer no serious reason why certiorari before judgment is necessary when they seek to present the exact same issue as the House’s Petition in this case. Moreover, as the Pedersen plaintiffs also seek to replicate the district court’s judgment in their favor, their Petition raises the same problems regarding appellate standing that are present in the other petitions, as well as the issues of party alignment that granting the House’s Petition would avoid. The House intends to oppose the Pedersen Petition.
* * *
In the final analysis, the reasons for this Court to grant the House’s Petition are straightforward and compelling. While everyone agrees that the question of DOMA’s constitutionality merits this Court’s review and there are multiple petitions presenting this question, only one arises in the traditional posture of a petition filed after judgment in the court of appeals, by the party aggrieved by that judgment. There are sound reasons why this is the posture historically favored by this Court. A petition filed after judgment ensures that the issues are fully explored below and that this Court has the benefit of the court of appeals’ considered judgment. Granting the petition filed by the party who failed to persuade

8
the court below ensures a proper alignment of the parties and the optimal briefing structure—an opening brief to address the unfavorable decision below and a reply to address the arguments in support of the judgment below. The proper course here is both the straightforward and traditional one: This Court should grant the House Petition and that Petition alone.
CONCLUSION
For the foregoing reasons, as well as those stated in the Petition, the House’s Petition for a Writ of Certiorari, No. 12-13, should be granted.

9
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Petitioner
September 11, 2012

 
 No. 12-15
In the Supreme Court of the United States
________________ UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES, ET AL., Petitioners,
v. COMMONWEALTH OF MASSACHUSETTS and THE
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
________________Respondents.
OFFICE OF PERSONNEL MANAGEMENT, ET AL., Petitioners,
v. NANCY GILL, ET AL., and BIPARTISAN
LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Respondents. ________________
On Petition for a Writ of Certiorari to the United States Cou_r_t_o__f _A_p__p_e_a_l_s_f_o_r the First Circuit
BRIE_F__I_N___O_P__P__O_S__I_TION
PAUL D. CLEMENT Counsel of Record H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com Counsel for Respondent (Additional Counsel Listed on Inside Cover)

KERRY W. KIRCHER General Counsel WILLIAM PITTARD Deputy General Counsel CHRISTINE DAVENPORT Senior Assistant Counsel TODD B. TATELMAN MARY BETH WALKER Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700

QUESTIONS PRESENTED
Section 3 of the Defense of Marriage Act (“DOMA”) provides that for purposes of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.” 1 U.S.C. § 7. The Department of Justice argued, and the court below agreed, that DOMA violates equal protection. The Department now seeks certiorari.
The questions presented are:
(1) Petitioners are federal agencies and officers who do not have general responsibility for administering DOMA, but merely oversee a limited number of its applications. When such agencies or officers argue that a federal statute is unconstitutional and prevail in the lower courts, and where the House of Representatives has intervened to defend the statute, do the agencies and officers have prudential standing to seek this Court’s review of the judgment they requested?
(2) Does Section 3 of DOMA violate the equal protection component of the Due Process Clause of the Fifth Amendment?

ii

PARTIES TO THE PROCEEDING

Respondent the Bipartisan Legal Advisory Group

of the U.S. House of Representatives (“the House”)

was the Intervenor-Appellant in the court below and

is the Petitioner in No. 12-13, seeking review of the

same judgment.1 The Department of Justice’s

statement in its Petition on behalf of the Executive

Branch defendants that the House intervened

merely “to present arguments” in favor of DOMA, see

Pet. (II), is inaccurate. Although the Department

argued below that the House’s intervention should

be limited to those terms, the court of appeals

granted the House leave “to intervene as a party

appellant” to fully litigate DOMA’s constitutionality

under equal protection principles.

Order,

1 The United States House of Representatives has articulated its institutional position in litigation matters through a fivemember bipartisan leadership group since at least the early 1980’s (although the formulation of the group’s name has changed somewhat over time). Since 1993, the House rules have formally acknowledged and referred to the Bipartisan Legal Advisory Group, as such, in connection with its function of providing direction to the Office of the General Counsel. See, e.g., Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993); Rule II.8, Rules of the House of Representatives, 112th Cong. (2011). While the group seeks consensus whenever possible, it functions on a majoritarian basis, like the institution it represents, when consensus cannot be achieved. The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases.

iii
Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. June 16, 2011).
Petitioners the U.S. Department of Health and Human Services, Kathleen Sebelius, in her official capacity as Secretary of the U.S. Department of Health and Human Services, the U.S. Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as Secretary of the U.S. Department of Veterans Affairs, and the United States of America were Appellants in the court below and are Respondents in No. 12-13. Petitioners the Office of Personnel Management, the U.S. Postal Service, Patrick R. Donahoe, in his official capacity as Postmaster General of the United States, Michael J. Astrue, in his official capacity as Commissioner of the Social Security Administration, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, and the United States of America were Appellants/Cross-Appellees in the court below and are Respondents in No. 12-13.
Respondents Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Jo Ann Whitehead, Bette Jo Green, Randell LewisKendell, Herbert Burtis, Marlin Nabors, Jonathan Knight, Dorene Bowe-Shulman, Mary BoweShulman, and the Commonwealth of Massachusetts were Appellees in the court below and are also Respondents in No. 12-13. Respondent Dean Hara was an Appellee/Cross-Appellant in the court below and is also a Respondent in No. 12-13. Neither Massachusetts nor any of the individual Respondents oppose the House’s Petition in No. 1213, nor (with the exception of Massachusetts’

iv
conditional cross-petition, No. 12-97), have they filed their own petitions for certiorari.

v
TABLE OF CONTENTS QUESTIONS PRESENTED ....................................... i PARTIES TO THE PROCEEDING........................... ii TABLE OF AUTHORITIES .................................... vii INTRODUCTION ...................................................... 1 STATEMENT OF THE CASE ................................... 3 1. The Defense of Marriage Act .............................. 3 2. The Justice Department’s About-Face
and the House’s Intervention ............................. 6 3. History of This Case............................................ 8
a. Procedural History ....................................... 8 b. First Circuit Proceedings ............................. 9 c. First Circuit Opinion ................................. 11 4. Other Pending Petitions Involving DOMA Section 3................................................ 12 REASONS FOR DENYING THE WRIT ................. 13 I. The House’s Petition Presents Exactly the Same Issues Regarding the Constitutionality of DOMA and the House Is the Proper and Logical Petitioner........................................................... 15 II. This Case Presents a Novel, Unlikely-toRecur Standing Question Implicating the Separation of Powers That Is Not Presented by the House’s Petition.................... 16

vi
A. General Rules of Appellate Standing Suggest That Petitioners Lack Standing to Invoke This Court’s Review ........................................... 16
B. Determining Whether An Exception to Ordinary Principles of Appellate Standing Is Applicable Would Require This Court to Confront Novel and Difficult Questions ................... 18
C. As the House Plainly Has Standing to Pursue Its Own Petition, Granting No. 12-13 Would Avoid This Question ............................................. 20
III. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Petition Alone ...................................... 24
CONCLUSION ......................................................... 25

vii

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982) .......................... 6

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) ......................................... 4

Camreta v. Greene, 131 S. Ct. 2020 (2011) ............................... 16, 17, 18

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008).................................... 10

Cooper Indus., Inc. v. Aviall Air Servs., Inc., 543 U.S. 157 (2004) ............................................... 19

Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................ 6

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) ......................................... 16, 17

Diamond v. Charles, 476 U.S. 54 (1986) ................................................. 23

Forney v. Apfel, 524 U.S. 266 (1998) ............................................... 16

Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) ................... 13

Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005) ............... 6

In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ................ 6

INS v. Chadha, 462 U.S. 919 (1983) ..............................16, 18, 20, 21

viii
Lear Siegler, Inc. v. Lehman, 842 F.2d 1102 (9th Cir. 1988), vacated in part on other grounds, 893 F.2d 205 (9th Cir. 1989) ................................. 22
Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002) ................................. 23
Parr v. United States, 351 U.S. 513 (1956) ............................................... 16
Pedersen v. United States, No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012)........................................ 13
Pub. Serv. Co. of Mo. v. Brashear Freight Lines, Inc., 306 U.S. 204 (1939) ............................................... 16
Raines v. Byrd, 521 U.S. 811 (1997) ............................................... 23
Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006) ............................ 6
Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) ............. 6
United States v. Lovett, 327 U.S. 773 (1946) ............................................... 19
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) ............................................... 23
Webster v. Fall, 266 U.S. 507 (1925) ............................................... 19

ix
Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) ................... 6
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012) .................... 13
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ............................................... 22
Constitutional Provision U.S. Const. art. II, § 3 ................................................ 6 Statutes 1 U.S.C. § 7 .............................................................. i, 3 5 U.S.C. § 8101 ........................................................... 5 5 U.S.C. § 8341(a)....................................................... 5 8 U.S.C. § 1186a(b)(1) ................................................ 5 I.R.C. § 2(b)(2) ............................................................ 5 I.R.C. § 6013(a)........................................................... 5 I.R.C. § 7703(b)........................................................... 5 38 U.S.C. § 101(31)..................................................... 5 42 U.S.C. § 416 ........................................................... 5 42 U.S.C. § 1382c(d)(2)............................................... 5 Revenue Act of 1921, § 223(b)(2),
42 Stat. 227.............................................................. 5 Veterans and Survivors Pension Interim
Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31)................................................................... 5

x
Regulation & Rules
U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180 (Jan. 6, 1995)............................ 5
Rule I.11, Rules of the House of Representatives, 103rd Cong. (1993)...................... ii
Rule II.8, Rules of the House of Representatives, 112th Cong. (2011)...................... ii
Other Authorities
142 Cong. Rec. 17093 (1996)...................................... 3
142 Cong. Rec. 22467 (1996)...................................... 3
Br. for The Congress of the U.S. in Supp. of Cert., United States v. Lovett, Nos. 809-811 (Mar. 14, 1946) ...................................................... 19
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) ................................ 4
Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .............................................. 3, 4
Dep’t of Justice’s Br., Bishop v. United States, No. 4:04-cv-848 (N.D. Okla. Nov. 18, 2011) ...................................... 8
Dep’t of Justice’s Br., Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011) .................. 8
Dep’t of Justice’s Br., Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012) ............ 8

xi
Dep’t of Justice’s Br., Golinski v. OPM, Nos. 12-15388 & 1215409 (9th Cir. July 3, 2012) .................................. 7
Dep’t of Justice’s Br., Lui v. Holder, No. 2:11-cv-1267 (C.D. Cal. Sept. 2, 2011) .......................................... 8
Dep’t of Justice’s Br., Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn. Sept. 14, 2011) ........................................ 8
Dep’t of Justice’s Br., Revelis v. Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012)........................................... 8
Dep’t of Justice’s Br., Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012) .............................. 7
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Rep. Hyde (May 14, 1996), reprinted in H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 .......................................... 3
Letter from Andrew Fois, Asst. Att’y Gen., to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. (1996) .................................................. 3
H.R. Rep. No. 104-664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 ................. 3, 4

xii
Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/ February/11-ag-223.html .................................... 6, 7
Pet. for Cert., United States v. Lovett, Nos. 809-811 (Feb. 5, 1946) ......................................................... 19
Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill (June 30, 2012) ...................................................... 12

INTRODUCTION
The House respectfully opposes the Department of Justice’s unnecessary and duplicative Petition. The important issue of the constitutionality of Section 3 of DOMA is squarely presented to this Court in the House’s own earlier-filed Petition in this case, No. 12-13. The House, and not the Department, shouldered the burden of defending DOMA’s constitutionality in the First Circuit. While the House’s arguments that DOMA is consistent with equal protection principles were rejected by the court of appeals, the Department’s attack on DOMA as an equal protection violation succeeded. While the House was aggrieved by the court of appeals decision, the Department was the prevailing party. Under these circumstances, the House is clearly the proper party to invoke this Court’s review, and the Court should reject the Department’s superfluous Petition, which, if granted, only would confuse the alignment of the parties and complicate proceedings before this Court.
The Petitioners here are Respondents to the House’s Petition in No. 12-13. Granting the House’s Petition will reflect the proper alignment of the Executive Branch defendants with those parties that believe DOMA is unconstitutional. There thus is no need to grant a duplicative petition from parties who agree with—and, in fact, requested—the judgment below. Indeed, if the Court were to grant the instant Petition, it essentially would have to undo the effect of that grant by consolidating the two cases and realigning Petitioners with the other parties that seek to preserve the judgment of the court of appeals. There is no reason to complicate matters,

2
particularly where, as here, the Department’s Petition is defective because the Executive Branch defendants likely lack standing. A party that prevails in the court of appeals and seeks to defend—not enlarge—that judgment, is not only poorly positioned to invoke this Court’s discretionary review, it is not clear that such a party has appellate standing in the circumstances of this case. There is no need to confront that difficult question because, as this Court has made perfectly clear, the House has standing to seek certiorari in these circumstances. Granting the House’s Petition therefore would permit this Court to consider DOMA’s constitutionality with a minimum of procedural confusion or rearrangement of parties and briefing schedules, while still permitting all parties, including Petitioners here, to participate in the case.
Moreover, in this context, where the Executive Branch has ceased to perform its constitutional role of defending a federal statute’s constitutionality and has adopted the anomalous position of affirmatively attacking the statute and the motives of the legislators and the President who enacted it, the Department is operating as a de facto amicus. As such, its views about the proper vehicle for this Court’s review are entitled to little weight.
In short, granting certiorari here, instead of, or in addition to, in No. 12-13, would serve only to complicate and confuse the Court’s consideration of DOMA’s constitutionality. Accordingly, the Court should grant the House’s Petition in No. 12-13 and deny the instant Petition.

3
STATEMENT OF THE CASE
1. The Defense of Marriage Act
The Defense of Marriage Act of 1996 “was enacted with strong majorities in both Houses [of Congress] and signed into law by President Clinton.” App 3a. The House of Representatives voted 342-67 to enact DOMA, and the Senate voted 85-14 to do so. See 142 Cong. Rec. 17093-94 (1996) (House); id. at 22467 (Senate).
Section 3 of DOMA defines “marriage” as the legal union of one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. These definitions apply for purposes of federal law only. DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage. Section 3 of DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of federal programs and funding.
While Congress was considering DOMA, it requested the opinion of the Department on the bill’s constitutionality, and the Department three times reassured Congress by letter that DOMA was constitutional. See Letters from Andrew Fois, Asst. Att’y Gen., to Rep. Canady (May 29, 1996), reprinted in H.R. Rep. No. 104-664, 34 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“House Rep.”); to Rep. Hyde (May 14, 1996), reprinted in House Rep. 33-34; and to Sen. Hatch (July 9, 1996), reprinted in The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 2 (1996) (“Senate Hrg.”). Congress also received and

4
considered other expert advice on DOMA’s constitutionality and concluded that DOMA is constitutional. E.g., House Rep. 33 (DOMA “plainly constitutional”); Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. 87117 (1996) (testimony of Professor Hadley Arkes); Senate Hrg. 1, 2 (Sen. Hatch) (DOMA “is a constitutional piece of legislation” and “a legitimate exercise of Congress’ power”); id. at 23-41 (testimony of Professor Lynn D. Wardle); id. at 56-59 (letter from Professor Michael W. McConnell).
Congress, of course, did not invent the meanings of the words “marriage” and “spouse” when it enacted DOMA in 1996. Instead, it adopted the traditional definitions of those terms. Nor was the timing of Congress’ decision a fortuity. Instead, Congress acted to ensure that Hawaii’s novel and then-recent decision to take steps toward redefining marriage, see Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), did not automatically dictate the definition in other jurisdictions. Thus, Section 2 of DOMA allowed each state to decide whether to retain the traditional definition without having another jurisdiction’s decision imposed via full faith and credit principles, and Section 3 preserved the federal government’s ability to retain the traditional definition for federal law purposes. Moreover, pre-1996 Congresses decidedly did not regard themselves as powerless to define marriage for purposes of federal law. Although Congress often has made eligibility for federal marital benefits or duties turn on a couple’s state-law marital status, it also has a long history of supplying federal marital definitions in various

5
contexts—definitions that always have been controlling for purposes of federal law, without regard to the couple’s status under state law.2 Indeed, in clarifying the meanings of “marriage” and “spouse” in federal law by enacting DOMA, Congress merely reaffirmed what it has always meant when using those words in federal law—and what courts and the Executive Branch have always understood it to mean: A traditional male-female couple.3
2 See, e.g., I.R.C. § 2(b)(2) (deeming persons unmarried who are separated from their spouse or whose spouse is a nonresident alien); I.R.C. § 7703(b) (excluding some couples “living apart” from federal marriage definition for tax purposes); 38 U.S.C. § 101(31) (for purposes of veterans’ benefits, “‘spouse’ means a person of the opposite sex”); 42 U.S.C. § 416 (defining “spouse,” “wife,” “husband,” “widow,” “widower,” and “divorce,” for social-security purposes); 42 U.S.C. § 1382c(d)(2) (recognizing common-law marriage for purposes of social security benefits without regard to state recognition); 5 U.S.C. §§ 8101(6), (11), 8341(a)(1)(A), (a)(2)(A) (federal employee-benefits statutes); 8 U.S.C. § 1186a(b)(1) (anti-fraud criteria regarding marriage in immigration law context).
3 See, e.g., Revenue Act of 1921, § 223(b)(2), 42 Stat. 227, 250 (permitting “a husband and wife living together” to file a joint tax return; cf. I.R.C. § 6013(a) (“A husband and wife may make a single return jointly of income taxes”)); Veterans and Survivors Pension Interim Adjustment Act of 1975, Pub. L. No. 94-169, Title I, § 101(31), 89 Stat. 1013, codified at 38 U.S.C. § 101(31) (“The term ‘spouse’ means a person of the opposite sex”); U.S. Dep’t of Labor, Final Rule, The Family and Medical Leave Act of 1993, 60 Fed. Reg. 2,180, 2,190-91 (Jan. 6, 1995) (rejecting, as inconsistent with congressional intent, proposed definition of “spouse” that would have included “same-sex relationships”); Adams v. Howerton, 486 F. Supp. 1119, 1123 (C.D. Cal. 1980) (“Congress, as a matter of federal law, did not intend that a person of one sex could be a ‘spouse’ to a person of the same sex for immigration law purposes.”), aff’d, 673 F.2d

6
2. The Justice Department’s About-Face and the House’s Intervention
After DOMA’s enactment, discharging the Executive’s constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, the Department during the Bush Administration successfully defended DOMA against several constitutional challenges, prevailing in every case to reach final judgment.4 The Department continued to defend DOMA during the first two years of the current Administration.
In February 2011, however, the Administration abruptly announced its intent to refuse to defend DOMA’s constitutionality. Letter from Att’y Gen. Eric H. Holder, Jr., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011), http://www.justice.gov/opa/pr/2011/February/11-ag223.html (“Holder Letter”). Attorney General Holder stated that he and President Obama were of the view “that a heightened standard [of review] should apply [to DOMA], that Section 3 is unconstitutional
1036 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982); Dean v. District of Columbia, 653 A.2d 307, 314 (D.C. 1995) (Congress, in enacting the District of Columbia’s marriage statute of 1901, intended “that ‘marriage’ is limited to opposite-sex couples”).
4 See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Smelt v. Cnty. of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff’d in part and vacated in part for lack of standing, 447 F.3d 673 (9th Cir. 2006), cert. denied, 549 U.S. 959 (2006); Hunt v. Ake, No. 04-cv-1852 (M.D. Fla. Jan. 20, 2005); Sullivan v. Bush, No. 04-cv-21118 (S.D. Fla. Mar. 16, 2005) (granting voluntary dismissal after the Department moved to dismiss); In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

7
under that standard and that the Department will cease defense of Section 3.” Id.
The Attorney General acknowledged that, in light of “the respect appropriately due to a coequal branch of government,” the Department “has a longstanding practice of defending the constitutionality of dulyenacted statutes if reasonable arguments can be made in their defense.” Id. He did not, however, apply that standard to DOMA. On the contrary, he conceded that every Circuit to consider the issue (i.e., eleven Circuits) had held that sexual orientation classifications are subject only to rational basis review, and he acknowledged that “a reasonable argument for Section 3’s constitutionality may be proffered under [the rational basis] standard.” Id.
In response, the House sought and received leave to intervene as a party-defendant in the various cases nationwide involving equal-protection challenges to DOMA’s constitutionality. Notwithstanding that the Holder Letter said only that the Department would not defend DOMA Section 3, the Department went further and affirmatively attacked Section 3 in court and accused the Congress that enacted DOMA—many of whose Members still serve—of doing so out of “animus.”5
5 See Superseding Br. for the U.S. Dep’t of HHS, et al. at 23, 46-48, 52, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Sept. 23, 2011) (“Dep’t Superseding 1st Cir. Br.”). The Department has filed substantive briefs in numerous other DOMA cases making this same argument. See briefs in Windsor v. United States, Nos. 12-2335 & 12-2435 (2d Cir. Aug. 10, 2012); Golinski v. OPM, Nos. 12-15388 & 12-15409 (9th Cir. July 3, 2012); Revelis v.

8
The Department took this position even though DOMA was the very same statute (i) that the Department had defended a few short months before, and (ii) that the Department acknowledges is constitutional under the equal protection standard that applies in the great majority of Circuits (rational basis review).
3. History of This Case
a. Procedural History
Gill v. Office of Personnel Management was filed in March 2009 in the District of Massachusetts by six same-sex couples married in Massachusetts and three surviving spouses of such marriages. The Gill plaintiffs sought to enjoin the Executive-Branch defendants from enforcing DOMA and to force those defendants to extend to the Gill plaintiffs federal benefits available to opposite-sex married couples. In July 2009, Massachusetts filed a companion case styled Massachusetts v. U.S. Department of Health and Human Services asserting that DOMA also violated the Tenth Amendment and the Spending Clause. App. 4a-5a.
The Department defended DOMA in the district court in the Gill and Massachusetts cases, App. 5a, although it declined to defend many of Congress’ stated justifications for the statute. See App. 53a
Napolitano, No. 1:11-cv-1991 (N.D. Ill. Apr. 23, 2012); Dragovich v. U.S. Dep’t of Treasury, No. 4:10-cv-1564 (N.D. Cal. Jan. 19, 2012); Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-45 (E.D. Pa. Dec. 30, 2011); Bishop v. United States, No. 4:04-cv848 (N.D. Okla. Nov. 18, 2011); Pedersen v. OPM, No. 3:10-cv1750 (D. Conn. Sept. 14, 2011); Lui v. Holder, No. 2:11-cv-1267 (C.D. Cal. Sept. 2, 2011).

9
(“[T]he government has disavowed Congress’ stated justifications for the statute and, therefore, they are addressed below only briefly.”).
In Gill, the district court held that Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause. App. 33a. In Massachusetts, the district court held that Section 3 violates the Tenth Amendment and the spending power “by intruding on areas of exclusive state authority” and by “forcing” the Commonwealth to “discriminat[e] against its own citizens in order to receive and retain federal funds” for Medicaid and for veterans’ cemeteries. App. 83a.
The Executive Branch defendants appealed the district court’s rulings in Gill and Massachusetts, which were consolidated for purposes of appeal. The district court stayed its judgments pending appeal. C.A. J.A. 676, 1425.
b. First Circuit Proceedings
On appeal, the Department “filed a brief in [the First Circuit] defending DOMA against all constitutional claims.” App. 6a. That brief argued that “DOMA is subject to rational basis review under the equal protection component of the Due Process Clause. Under such review the statute is fully supported by several interrelated rational bases.” Corrected Br. for U.S. Dep’t of HHS, et al. 25, Massachusetts v. U.S. Dep’t of HHS, Nos. 10-2204, 10-2207, & 10-2214 (1st Cir. Jan. 20, 2011).
Only a few weeks later, in February 2011, the Department executed its “about face” on DOMA, App. 6a, and informed the First Circuit that it would “cease its defense” in the Gill and Massachusetts

10
appeals. Letter from Tony West, Asst. Att’y Gen., to Margaret Carter, Clerk of Court (Feb. 24, 2011); see No. 12-13 Appendix 130a. The House then moved to intervene on appeal, and the Department moved to withdraw its opening brief. App. 6a. Although the Department attempted to limit the House’s role as an intervenor, the First Circuit granted the House full party status. Order at 2, Massachusetts (1st Cir. June 16, 2011). The First Circuit also denied the Department’s motion to withdraw its opening brief, while permitting the Department to file a superseding brief. See Dep’t Superseding 1st Cir. Br. In its new brief, the Department not only failed to defend the constitutionality of an Act of Congress but affirmatively attacked it, arguing that “the equal protection claim should be assessed under a ‘heightened scrutiny’ standard and that DOMA failed that standard.” App. 6a. Indeed, the brief went so far as to attack the motives of the individual legislators and the President who signed the legislation and to charge them with animus.
Nevertheless, the Department recognized “that binding authority of [the First C]ircuit”—indeed, binding authority issued based on arguments the Executive Branch made only a few years before— “holds that rational basis review applies to classifications based on sexual orientation.” Dep’t Superseding 1st Cir. Br. 22 (citing Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008)). The Department sought initial en banc consideration of the case in the First Circuit, but that petition was denied. Order at 1, Massachusetts (1st Cir. Aug. 23, 2011). Nevertheless, the Department’s merits brief for the panel argued extensively for the application of

11
heightened scrutiny to the equal protection claims, while acknowledging that this path was foreclosed to the panel. Dep’t Superseding 1st Cir. Br. 24-53. In response to Massachusetts’ claims, however, the Department conceded that DOMA is valid under the Tenth Amendment and (if it does not violate equal protection) under the spending power. Id. at 53-61.
c. First Circuit Opinion
Affirming the district court’s equal protection holding, the First Circuit held that Section 3 of DOMA violates equal protection.
Although the Gill plaintiffs, the Department of Justice, and Massachusetts all urged the court below to recognize sexual orientation as a suspect or quasisuspect classification and to apply heightened scrutiny to DOMA, the First Circuit declined to do so. The panel also rejected the Justice Department’s request for the application of “the so-called intermediate scrutiny test.” App. 10a.
Significantly, the First Circuit expressly recognized that DOMA passes the rational basis test, stating that, “[u]nder such a rational basis standard, the Gill Plaintiffs cannot prevail.” App. 9a. The court also noted that the Department conceded this point. See App. 10a (“The federal defendants conceded that rational basis review leaves DOMA intact”); App. 8a (“The federal defendants said that DOMA would survive such rational basis scrutiny”). But it nevertheless struck down DOMA under a novel form of “intensified scrutiny” or “closer than usual review.” App. 11a, 7a; see also App. 14a-15a (“closer than usual scrutiny”).

12
Applying this form of review, the First Circuit concluded that “the rationales offered do not provide adequate support for section 3 of DOMA.” App. 22a. Although it erred in striking down Section 3 of DOMA, the First Circuit correctly rejected the Department’s suggestion “that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App. 23a. The court explained that “[t]he opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton.” App. 23a; see id. (“[T]he elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect.”).
The First Circuit also rejected Massachusetts’ Tenth-Amendment and spending power claims. App. 15a-16a.
4. Other Pending Petitions Involving DOMA Section 3
The question of DOMA’s constitutionality also is presented by five other petitions for certiorari pending before this Court. Two of those petitions arise out of the First Circuit’s decision and judgment in this case. The others are petitions for certiorari before judgment following appeals of district court decisions striking down DOMA on equal protection grounds. On June 29, 2012, the House filed the first petition for certiorari seeking review of the First Circuit’s decision. See Pet. for Cert., No. 12-13, Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. On July 3, the Department filed the instant Petition, in the same case. And on July 20, Massachusetts filed a

13
conditional cross-petition, No. 12-97, responding to both the House’s Petition and this one. No party opposed the House’s Petition in No. 12-13.
The Department also has sought certiorari before judgment in the court of appeals in Golinski v. OPM, No. 12-16 (July 3, 2012), following a decision of the Northern District of California striking down DOMA on equal protection grounds. See 824 F. Supp. 2d 968 (N.D. Cal. 2012). Following the Department’s lead, another petition for certiorari before judgment has been filed by the private plaintiff in Windsor v. United States, No. 12-63 (July 16, 2012), following a judgment of the Southern District of New York striking down DOMA under equal protection. See 833 F. Supp. 2d 394 (S.D.N.Y. 2012). Even more recently, another group of private plaintiffs has filed a similar petition for certiorari before judgment in Pedersen v. United States, No. 12-231 (Aug. 21, 2012), following a judgment of the District of Connecticut striking down DOMA under equal protection. No. 10-cv-1750, 2012 WL 3113883 (D. Conn. July 31, 2012).
REASONS FOR DENYING THE WRIT
The Department’s Petition is duplicative and unnecessary, and granting it would only invite procedural confusion in this case. The House’s earlier-filed Petition in this case, No. 12-13, presents the same question regarding DOMA’s constitutionality. No one doubts the importance of that question or that the House is the only party to the litigation defending DOMA’s constitutionality or seeking reversal of the judgment of the court of appeals. Under those circumstances, it is no mystery as to the proper party to invoke this Court’s

14
jurisdiction for purposes of reversing the judgment of the court of appeals—it is self-evidently the House. The interests of all the parties and the Court in convenience and procedural clarity—and even the Department’s ability to mount its attack on DOMA’s constitutionality—would be most straightforwardly served by granting the House’s Petition, where the Department is properly aligned as a Respondent, and denying this Petition and the other pending petitions for certiorari before judgment.
Indeed, this Petition, unlike the House’s Petition in No. 12-13, features a vehicle problem for this Court’s review given the status here of the Executive Branch defendants. Those defendants prevailed in the court of appeals and they do not seek reversal, amendment or enlargement of the court of appeals’ judgment. Nor is this a situation where the statute at issue is one that the Executive Branch defendants administer. Under these circumstances, it is far from clear that the Petitioners even have appellate standing to seek review of a judgment they procured. Granting this Petition would force the Court to confront that question and unnecessarily embroil itself in the resolution of a dispute between the Legislative and Executive Branches.
Moreover, having surrendered to the House its traditional role of defending federal statutes, the Department’s role in this case has essentially been one of an amicus curiae, seconding the plaintiffs’ arguments that DOMA is unconstitutional. As such, the Department’s view that some petition other than the one filed by the aggrieved party seeking review of an adverse court of appeals decision should be granted is entitled to little weight. Likewise, as a de

15

facto amicus seeking DOMA’s demise, the Department’s interests are fully aligned with those of the plaintiffs. It makes little sense—and would generate considerable procedural confusion—to grant a separate and unnecessary certiorari request by the Department in these circumstances.

I. The House’s Petition Presents Exactly the

Same

Issues

Regarding

the

Constitutionality of DOMA and the House

Is the Proper and Logical Petitioner.

The question presented by the instant Petition is identical to the House’s Question 1 in No. 12-13. Compare Pet. (I) with Pet. No. 12-13 i. Both Petitions seek review of the same First Circuit judgment. Thus, there is nothing unique as to the DOMA issues presented in this Petition that would not otherwise be addressed by granting the House’s Petition.

Equally important, the House is the proper Petitioner. It was the House, and not the Department, that unsuccessfully defended DOMA below. It is the House, and not the Department, that is aggrieved by that decision and seeks to reverse the judgment of the court of appeals. And it is the House’s Petition, and not the Department’s, that properly aligns the real interests of those attacking and defending DOMA on opposite sides of the “v.” Under these circumstances, the proper course is also the most straightforward course: The Court should grant the House’s Petition in No. 12-13 and deny the instant Petition.

16
II. This Case Presents a Novel, Unlikely-toRecur Standing Question Implicating the Separation of Powers That Is Not Presented by the House’s Petition.
Granting certiorari in this case, however, would require this Court to consider an issue entirely unrelated to DOMA, and which is nearly as obscure as the issue of DOMA’s constitutionality is prominent: The question whether there is an exception to normal appellate standing rules in the narrow circumstances presented here.
A. General Rules of Appellate Standing Suggest That Petitioners Lack Standing to Invoke This Court’s Review.
One of the basic rules of federal procedure is that “a party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” INS v. Chadha, 462 U.S. 919, 930 (1983) (quoting Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (brackets omitted)); accord Forney v. Apfel, 524 U.S. 266, 271 (1998); Parr v. United States, 351 U.S. 513, 516 (1956); Pub. Serv. Co. of Mo. v. Brashear Freight Lines, Inc., 306 U.S. 204, 206 (1939). Two Terms ago, this Court made clear that the same principle applies to its certiorari jurisdiction. Camreta v. Greene, 131 S. Ct. 2020, 2030-33 (2011). As a result, “[a]s a matter of practice and prudence, [this Court has] generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed [it] to do so.” Id. at 2030. “On the few occasions when [it has] departed from that principle,” the Court has “pointed to a policy reason of sufficient importance to allow an appeal by the

17
winner below.” Id. (quotation marks and alterations omitted).
In Camreta, for instance, this Court observed that “government officials who prevail on grounds of qualified immunity” generally may “obtain our review of a court of appeals’ decision that their conduct violated the Constitution,” id. at 2026, because such decisions are “self-consciously designed” to “establish[] controlling law and prevent[] invocations of immunity in later cases,” id. at 2030. In such circumstances, the government officials do seek effectively to enlarge the scope of the judgment, since a decision finding no liability but a constitutional violation has serious collateral consequences compared with a decision finding no constitutional violation. Other reasons the Court has found sufficient to grant the petitions of parties who nominally obtained the relief they sought below include the avoidance of negative stare decisis or collateral-estoppel effects from interlocutory rulings, or the vindication of important procedural rights of the lower-court winner. E.g., Roper, 445 U.S. at 331, 337. In those cases, the petitioners also effectively sought to enlarge the relief obtained below by seeking to eliminate collateral consequences of the decisions.
Of course, in the instant situation, Petitioners clearly “receive[d] all that [they] sought” from the courts below, which entered exactly the judgment they had requested: Among other things, a determination that DOMA is unconstitutional. Petitioners do not seek a decision with different collateral consequences; rather, they seek to replicate the relief they obtained below. And the

18
presentation of the exact same questions of law regarding DOMA by the House’s Petition means that there can be no other “policy reason of sufficient importance” to grant the prevailing parties’ request for certiorari. Cf. Camreta, 131 S. Ct. at 2030. Thus, under ordinary principles of appellate standing, Petitioners would clearly lack appellate standing.
B. Determining Whether An Exception to Ordinary Principles of Appellate Standing Is Applicable Would Require This Court to Confront Novel and Difficult Questions.
Under ordinary principles of appellate standing, Petitioners lack standing to invoke this Court’s review of the First Circuit’s decision. The question thus becomes whether Petitioners in this case fit into an exception to the standing doctrine carved out by this Court in Chadha.
There, the Court stated that “[w]hen an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal,” even where the agency requested the judgment below. 462 U.S. at 931. Although that principle provided appellate standing for the INS in Chadha—since the statutory provision in that case was a section of the Immigration and Nationality Act which the INS administered, id. at 926—it does not work here. To find appellate standing in the instant case would require an extension of Chadha because DOMA is a definitional statute codified alongside the Dictionary Act and affects hundreds of statutes across the U.S.

19
Code, not just those that OPM administers. Notably, OPM has not been entrusted with any unique authority to administer DOMA itself.
This case therefore is substantially different from Chadha, and presents the question of whether the exception to ordinary rules of appellate standing applied in that case should be expanded—to permit a federal agency to seek this Court’s review of a judgment invalidating a statute that the agency requested, even where the agency does not have a unique relationship to the challenged statute. The Department cites United States v. Lovett, 327 U.S. 773 (1946), as establishing its prudential standing here, see Pet. 12, but Lovett does not nearly lay the issue to rest. In that case, the Solicitor General petitioned for certiorari at the request of Congress, even permitting Congress to frame one of the Questions Presented, and Congress expressly supported the petition. See Pet. for Cert. at 2 & n.1, 9, Lovett, Nos. 809-811 (Feb. 5, 1946); Br. for The Congress of the U.S. in Supp. of Cert., id. (Mar. 14, 1946). The Court did not expressly address the appellate standing question and there have been substantial developments in the doctrine in the ensuing six and a half decades. Questions such as the Department’s appellate standing in Lovett, “which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Cooper Indus., Inc. v. Aviall Air Servs., Inc., 543 U.S. 157, 170 (2004) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). Lovett therefore cannot be dispositive of the issue.

20
Determining the Department’s prudential standing in these circumstances would require this Court to wade into a separation of powers dispute in circumstances where doing so is wholly unnecessary. There is no need to engage this question in order to determine DOMA’s constitutionality because granting the House’s Petition would avoid the question entirely. See also infra Pt. II.C. And there is precious little practical need to resolve this question, for the cases in which the Executive Branch refuses to defend a federal statute are few in number, and the circumstances in which the challenged statute is too broad to be administered by any single agency—and in which the Executive Branch seeks this Court’s review against the wishes of the Congressional body actively seeking this Court’s review—are vanishingly rare.
C. As the House Plainly Has Standing to Pursue Its Own Petition, Granting No. 1213 Would Avoid This Question.
As this Court stated plainly in Chadha, “Congress is both a proper party * * * and a proper petitioner” when the Executive Branch refuses to defend a statute, and the Legislative Branch’s presence in such a case ensures that the courts have Article III jurisdiction. See 462 U.S. at 939, 931 n.6. Nevertheless, the Department suggests that it is the House that lacks independent standing to defend DOMA. See Pet. 12-13 n.3. This argument is facially incompatible with this Court’s holding in Chadha, and indeed would eviscerate the rationale of Chadha. It also implausibly suggests that the Executive Branch could preclude this Court’s review of the constitutionality of a statute that the House or

21
Senate or both actively seek to defend by the simple expedient of not filing a petition.
The Department appears to believe that this Court did not mean what it said in Chadha when it held that “Congress is both a proper party * * * and a proper petitioner” in cases such as this one, 462 U.S. at 939. The Department appears to think that Congress should be relegated to the status of amicus curiae. But that is decidedly not what this Court said in Chadha and it ignores the House’s institutional interest in defending an Act of Congress that the Executive Branch refuses to defend.
The Department’s view necessarily means that but for an act of Executive Branch grace in filing a petition for certiorari, both Congress and this Court would be powerless to review a decision invalidating an Act of Congress. Such a system would skew the separation of powers profoundly. It would deny Congress the ability to defend the constitutionality of its enactments and deny this Court the ability to review a particularly important and sensitive class of judicial decisions, those invalidating an Act of Congress. It would arrogate to the Executive Branch the ability to nullify acts of Congress based on a lower federal court’s decision and its own refusal to seek further review. This would frustrate the Framers’ deliberate decision to place this Court atop the judiciary hierarchy, and it would be tantamount to providing the Executive Branch with an extraconstitutional, post-enactment veto over federal statutes to which it objects. The Executive Branch simply does not possess that kind of unilateral authority under our Constitution. See generally

22
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-589 (1952) (it is the judiciary’s responsibility to interpret and enforce constitutional limits on the Executive Branch when it seeks to exercise authority assigned to other branches); Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1122 (9th Cir. 1988) (“[T]he executive branch [may not] interpret the Constitution so as to assume additional powers or thwart the constitutional functions of a coordinate branch.”), vacated in part on other grounds, 893 F.2d 205 (9th Cir. 1989).
It is no answer for the Department to represent that it will facilitate review by filing Petitions like this. The separation of powers is too important to rely on one branch’s acts of grace. The Framers designed a system by which each branch could vindicate its own institutional interests. They did not make Congress dependent on the Executive Branch for the procedural steps necessary for this Court’s jurisdiction even in cases in which the Executive Branch emphatically refuses to defend the substance of Congress’ work. As the Chadha Court recognized, Congress is as much a part of the government of the United States as the Executive Branch, and when the latter defaults on its normal obligation to defend the constitutionality of a law, the House or Senate are the obvious and proper parties to step in and represent their institutional interest in the validity of the statutes they have enacted.
The cases cited by Petitioners, see Pet. 12-13 n.3, do not even begin to establish otherwise. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464

23
(1982), dealt only with standing of taxpayers in that capacity, not Congress. Diamond v. Charles, 476 U.S. 54 (1986), likewise involved only the standing of a private individual in defending the constitutionality of a state law, not Congress’ much more concrete institutional interest in defending the validity of a federal statute. Raines v. Byrd, 521 U.S. 811 (1997), dealt with the standing of individual legislators—as opposed to the House as an institution—to challenge statutes implicating congressional procedure. And Lovett plainly is not dispositive of the issue. See supra pp. 19-20. The case that is dispositive is Chadha and there is no reason to reconsider its holding that Congress is a proper party—and here the proper party—to petition the Court and defend the statute’s constitutionality.6
As a result, there is no serious issue under this Court’s precedents as to the House’s standing to seek certiorari here—but there is an unsettled question as to the Petitioners’ appellate standing to do so. If the Court grants the House’s Petition, the Petitioners here will of course remain parties to the case and as such will be able to bring their views before the Court. But given the cloud over their standing, granting their separate Petition would be neither prudent nor necessary.7
6 Likewise, the Ninth Circuit case cited by Petitioners, Newdow v. U.S. Congress, 313 F.3d 495 (9th Cir. 2002), involved only whether Congress may intervene in a case where the Department is defending a statute’s constitutionality. See id. at 497 & n.2, 500.
7 Even if any doubt remained as to the House’s own standing, it could be addressed simply by granting the House’s Petition in No. 12-13 and holding the instant Petition, to be granted only if

24
III. The Department Operates as a De Facto Amicus in This Case and That Status Is Best Accommodated by Granting the House’s Petition Alone.
Ever since the Department abandoned its traditional responsibility of defending the constitutionality of DOMA, it has operated as a de facto amicus supporting the arguments of plaintiffs attacking the statute’s constitutionality. As such, the Department is not entitled to any special consideration of its views as to the appropriate vehicle for this Court’s review. Thus, where the only party defending DOMA (the House) has sought certiorari in this case and no party has opposed it, the Department’s suggestion that this Court should accept its Petition instead should be viewed with deep skepticism.
Moreover, given the Department’s role as a de facto amicus supporting the plaintiffs, granting this Petition would lead to procedural complications and require the Court to realign the parties for purposes of briefing and argument. There is no need to scramble the parties by granting this Petition only to undo the effect by granting later procedural motions when the House’s Petition in No. 12-13 accurately reflects the actual alignment of the parties. In the House’s Petition, all of the parties attacking DOMA are respondents who support affirmance. They can file “bottom-side” briefs defending the decision and judgment below and propose a division of argument among themselves. If this Court grants the
and when the Court determined it was necessary to allow it to decide the case.

25
Department’s Petition here, it presumably will need to realign the parties to achieve the same basic effect. There is no need for such machinations. The correct answer here is also the most straightforward: The proper petitioner is the party aggrieved by the judgment below. The Court should grant the House’s Petition in No. 12-13, and deny this Petition as well as the various Petitions seeking the extraordinary remedy of certiorari before judgment.
CONCLUSION
For the foregoing reasons, the Department’s Petition for a writ of certiorari should be denied. The House’s Petition for certiorari in No. 12-13 should be granted.

26
Respectfully submitted,
PAUL D. CLEMENT Counsel of Record
H. CHRISTOPHER BARTOLOMUCCI NICHOLAS J. NELSON BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 pclement@bancroftpllc.com
KERRY W. KIRCHER General Counsel
WILLIAM PITTARD Deputy General Counsel
CHRISTINE DAVENPORT Senior Assistant Counsel
TODD B. TATELMAN MARY BETH WALKER
Assistant Counsels OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Bldg. Washington, D.C. 20515 (202) 225-9700
Counsel for Respondent The Bipartisan Legal Advisory Group of the United States House of Representatives
August 31, 2012

 
 No. 12-15
In the Supreme Court of the United States
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v.
MASSACHUSETTS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

TABLE OF CONTENTS

Page

A. The federal agency defendants have standing to seek
certiorari ................................................................................ 2 B. By granting this petition, the Court may consider but
should reject the Commonwealth’s alternative bases for affirmance ........................................................................ 6

TABLE OF AUTHORITIES

Cases:

INS v. Chadha, 462 U.S. 919 (1983)..................................1, 2, 3 Massachusetts v. United States, 435 U.S. 444 (1978) ............ 7 New York v. United States, 505 U.S. 144 (1992) ..................... 8 Northwest Airlines, Inc. v. County of Kent, 510 U.S.
355 (1994) ................................................................................ 6 Printz v. United States, 521 U.S. 898 (1997) ........................... 8 South Dakota v. Dole, 483 U.S. 203 (1987) ..........................7, 8 United States v. Lovett:
327 U.S. 773 (1946) ................................................................. 3 328 U.S. 303 (1946) ................................................................. 3 Windsor v. United States, No. 12-2335, 2012 WL 4937310 (2d Cir. Oct. 18, 2012) ............................................. 3

Constitution and statute:

U.S. Const.:
Art. I, § 8 (Spending Clause) .............................................6, 7, 9 Art. III .......................................................................................... 3 Amend. V ...................................................................................... 1 Amend. X..............................................................................6, 8, 9

(I)

II

Statute—Continued:

Page

Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419, § 3, 110 Stat. 2419 (1 U.S.C. 7) .......................................................... 1, 2, 4, 6, 7, 8

Miscellaneous:

Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) ........................................................................ 2

In the Supreme Court of the United States
No. 12-15 DEPARTMENT OF HEALTH AND HUMAN SERVICES,
ET AL., PETITIONERS v.
MASSACHUSETTS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
REPLY BRIEF FOR THE FEDERAL PETITIONERS
All parties agree that this case warrants this Court’s review on the question whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection as applied to persons of the same sex who are legally married under state law. The Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) nevertheless opposes the government’s petition for a writ of certiorari, in favor of its own petition, on the ground that “the Executive Branch defendants likely lack [appellate] standing.” BLAG No. 12-15 Br. in Opp. 2.
The federal agency defendants plainly have standing to seek certiorari under INS v. Chadha, 462 U.S. 919, 930-931, 939 (1983). While the Executive Branch agrees with the constitutional ruling reached by the courts below that Section 3 of DOMA violates equal protection, it
(1)

2
continues to enforce Section 3 pending definitive judicial resolution of its constitutionality. Because judgment was entered against the federal agency defendants, because the court of appeals affirmed that judgment, and because that judgment would prevent them from taking enforcement action they would otherwise take, the federal agency defendants are aggrieved by the judgment. The government is thus a proper party to seek this Court’s review of the judgment below.
A. The Federal Agency Defendants Have Standing To Seek Certiorari
1. This Court’s precedents make clear that the federal agency defendants, as federal entities and officials charged with Section 3’s enforcement and against which judgment was entered below, are proper parties to invoke this Court’s jurisdiction to review the judgment in this case. While the government concurs substantively with the court of appeals’ conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until * * * the judicial branch renders a definitive verdict against the law’s constitutionality.” Letter from Eric H. Holder, Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives 5 (Feb. 23, 2011). Absent the stays pending further review entered by both the district court and the court of appeals, the federal agency defendants would be enjoined from enforcing Section 3 in this case. See No. 12-15 Pet. App. 26a, 75a-81a, 123a124a. They accordingly are “aggrieved” by the judgment below for purposes of establishing standing to seek this Court’s review. See Chadha, 462 U.S. at 930, 939. As the Chadha Court explained, even “prior to Congress’ intervention” in that case, the Executive’s decision to comply with the challenged law, despite its view

3 that the law was unconstitutional, created “adequate Art. III adverseness.” Id. at 939; see also Windsor v. United States, No. 12-2335, 2012 WL 4937310, at *2 (2d Cir. Oct. 18, 2012) (denying BLAG’s motion to strike the government’s notice of appeals because “[t]he constitutionality of the statute will have a considerable impact on many operations of the United States”) (citing Chadha, 462 U.S. at 931).
In Chadha, the Court faced a situation materially indistinguishable from the present one on the issue of the Executive Branch’s standing. An Executive Branch agency, the former Immigration and Naturalization Services (INS), sought to appeal a court of appeals’ judgment against it that invalidated a provision in the Immigration and Nationality Act, despite the fact that the INS had joined the alien in the court of appeals in arguing that the provision was unconstitutional. 462 U.S. at 928. This Court directly addressed whether the Executive Branch could seek this Court’s review in those circumstances. The Court held that “[w]hen an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may seek review of that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.” Id. at 930-931. That holding is dispositive here. It is also consistent with the course of proceedings in United States v. Lovett, 328 U.S. 303 (1946), where the Court reviewed the constitutionality of a congressional enactment on the petition of the Solicitor General alone, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional. Id. at 306-307; see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).

4 BLAG’s attempt to distinguish the Executive Branch’s posture in Chadha from its posture in this case does not withstand scrutiny. BLAG relies on the fact that Section 3, unlike the statute at issue in Chadha, is not administered by a single agency “entrusted with any unique authority to administer DOMA.” No. 12-15 Br. in Opp. 1819. But that is a distinction without a difference: nothing in Chadha affords any weight to the fact that the INS was the sole agency charged with administering the immigration statute at issue in that case. See 462 U.S. at 929-931. And it is clear that the federal agencies and officials that are defendants here at least mutually share authority in administering Section 3 of DOMA. BLAG also notes that Chadha involved a separation-of-powers dispute between the Executive Branch and Congress, No. 12-307 Br. in Opp. 23, but that distinction suggests only that BLAG’s claim of standing, not that of the federal agency defendants, may be more dubious in this case where Congress has no such direct interest. Chadha therefore establishes the federal petitioners’ standing to seek the Court’s review in this case. BLAG’s response to Lovett is also unpersuasive. Although it is true that “[t]he Court did not expressly address the appellate standing question” in Lovett, BLAG No. 12-15 Br. in Opp. 19, the fact that Congress (which sought to defend the statute) requested the Solicitor General to file a petition for a writ of certiorari (ibid.)— rather than file its own petition—only confirms the conclusion that the United States or its agencies and officials are the proper parties to seek this Court’s review in circumstances like those present here. See U.S. Br. 2, Lovett, supra (Nos. 809, 810, 811) (“The United States, against which judgments were rendered in the court below, has sought review of these cases * * * because

5 amici curiae, representing the Congress, having no independent means of access to the Court, requested that a petition for writs of certiorari be filed.”) (citation omitted).
Relatedly, BLAG’s suggestion that the federal agencies and officials that are defendants in this suit are “operat[ing] as a de facto amicus” supporting DOMA’s challengers (No. 12-15 Br. in Opp. 24) has it backwards. Those agencies and officials are the only parties against which judgment was entered in this case. Pet. App. 26a (affirming judgment of district court), 75a-81a (district court judgment in Gill), 123a-124a (district court judgment in Massachusetts). In Lovett, the United States participated as a party, and Congress participated as an amicus to defend the statute because the United States sided with the challenger. Here, the Executive Branch would likewise participate as a party; and BLAG would present arguments in defense of the statute.
2. Contrary to BLAG’s contention (No. 12-15 Br. in Opp. 1), granting this petition would not unnecessarily “confuse” or “complicate” the proceedings before this Court. Rather, granting the petition of the federal agencies and officials—the parties against which judgment was entered—would simplify matters by rendering it unnecessary to decide any constitutional or prudential questions arising from BLAG’s own request for review in No. 12-13. See No. 12-15 Pet. 12 n.3. That is especially true where, as here, the district court’s judgment (Pet. App. 75a-81a, 123-124a), affirmed by the court of appeals in pertinent part (id. at 26a), was entered against only the federal agency defendants, not BLAG. If the Court were to deny the government’s petition and grant BLAG’s petition alone, but then decide that BLAG is mistaken about its independent standing, that would

6
force the Court to dismiss the case on standing grounds. Accordingly, the government’s petition is necessary to ensure that this Court can definitely resolve the question of Section 3’s constitutionality in this case.1
B. By Granting This Petition, The Court May Consider But Should Reject The Commonwealth’s Alternative Bases for Affirmance
The Commonwealth of Massachusetts raises two independent grounds for affirming the judgment below: (1) Section 3 violates the Spending Clause’s “germaneness” requirement because Section 3 is unrelated to the purposes of the federal programs it affects;2 and (2) Section 3 violates the Tenth Amendment by impermissibly intruding into the Commonwealth’s regulation of marriage. See Nos. 12-13, 12-15 Commonwealth Resp. in Supp. of Cert. 1-2; No. 12-97 Conditional Cross-Pet. 3-4. As both the Commonwealth (Cross-Pet. 9) and BLAG (No. 12-97 Br. in Opp. 2, 12-13) recognize, the Court may adjudicate both alternative grounds without any need to grant the Commonwealth’s separate cross-petition. See, e.g., Northwest Airlines, Inc. v. County of Kent, 510 U.S.
1 BLAG’s apparent concern that granting the government’s petition would require the Court to undertake procedural “machinations” (No. 12-15 Br. in Opp. 24-25)—i.e., the modest step of adjusting the alignment of the parties for purposes of briefing and argument—is far outweighed by the potential obstacle to justiciability noted above if this Court were to grant BLAG’s petition alone. Indeed, the proceedings in Chadha reflect such a realignment. See No. 12-16 Reply Br. 5.
2 The Commonwealth argues that Section 3 also violates the Spending Clause because it forces the Commonwealth to engage in unconstitutional discrimination against same-sex couples lawfully married under state law in violation of equal protection, see Nos. 12-13, 12-15 Resp. in Supp. of Cert. 1-2; No. 12-97 Conditional Cross-Pet. 3, but that ground is merely derivative of the main question presented.

7 355, 364 (1994) (“A prevailing party need not crosspetition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment.”). The Court need not reach either claim, however, if it determines that Section 3 violates equal protection. In any event, as explained below and as the court of appeals correctly concluded, both claims fail on the merits.
1. Statutes that impose conditions on the receipt of federal funds or on the collection of federal taxes generally raise no constitutional concerns under the Spending Clause. See South Dakota v. Dole, 483 U.S. 203, 206-207 (1987). This Court in Dole identified certain limitations on Congress’s spending power, including, as pertinent to the Commonwealth’s argument here, “that conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’ ” Id. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality op.)).
The Commonwealth argues that Section 3 exceeds Congressional authority under the Spending Clause because Section 3’s bar on the provision of certain benefits to same-sex couples lawfully married under state law is insufficiently related to the purposes of the many federal programs it affects, including the Medicaid and State Cemetery Grants programs at issue here. See Nos. 1213, 12-15 Commonwealth Resp. in Supp. of Cert. 26-27; No. 12-97 Conditional Cross-Pet. 18-19. That argument lacks merit. As the court of appeals explained (Pet. App. 16a), “the [‘germaneness’] requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit.” In Dole, the Court upheld against a germaneness challenge Congress’s conditioning of federal funds for highway construction on a state’s adoption

8 of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. The validity of the funding limitation in this case follows a fortiori from Dole, because, unlike in Dole, Congress here has not required the Commonwealth to take any action apart from the use of federally appropriated funds in accordance with federal law. Section 3 “merely limits the use of federal funds to prescribed purposes.” Pet. App. 16a.
2. This Court has invalidated statutes based on the Tenth Amendment only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. See New York v. United States, 505 U.S. 144, 161 (1992); Printz v. United States, 521 U.S. 898, 907-909 (1997). As the Court has explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York, 505 U.S. at 156. Accordingly, absent a commandeering claim, the Tenth Amendment is inapplicable to situations in which Congress properly exercises its authority under an enumerated constitutional power.
The Commonwealth argues that Section 3 “violates the Tenth Amendment because it purports to regulate a ‘domain of activity set apart by the Constitution as the province of the states.’ ” No. 12-97 Conditional CrossPet. 11 (citation omitted); see Nos. 12-13, 12-15 Commonwealth Resp. in Supp. of Cert. 16-21. Although domestic relations and the incidents of marriage have fallen largely within the realm of state regulation, “Congress surely has an interest in who counts as married” for purposes of federal benefit programs. Pet. App. 15a. As the court of appeals recognized (id. at 16a), moreover, “section 3 governs only federal programs and fund-

9
ing, and does not share the[] two vices of commandeering or direct command.” But for its violation of equal protection, Section 3 would be a proper exercise of the Congress’s Spending Clause power. See pp. 7-8, supra. The Commonwealth’s Tenth Amendment claim thus fails.
* * * * * For the reasons explained in the government’s supplemental brief (at 10-11) and reply brief in United States v. Windsor, No. 12-307, the Court should grant the petition for a writ of certiorari in that case. Although a court of appeals has also rendered a decision in this case, Windsor now provides the most appropriate vehicle for this Court’s resolution of the constitutionality of Section 3 of DOMA. In particular, the court of appeals in this case was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 1215 Pet. App. 10a, whereas the court of appeals in Windsor was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue. In the event the Court grants review in Windsor, it should hold the petitions in this case pending final resolution on the merits. In the event the Court decides that neither case in which the court of appeals has issued a decision provides an appropriate vehicle, it should grant the government’s petition for a writ of certiorari before judgment in either Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012), or Office of Personnel Management v. Pedersen, No. 12-302 (filed Sept. 11, 2012).

10 Respectfully submitted.

NOVEMBER 2012

DONALD B. VERRILLI, JR. Solicitor General

 
 Nos. 12-13 & 12-15

IN THE
Supreme Cou_r_t_o_f__th__e_United States
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES, Petitioner, v.

NANCY GILL, ET AL., _____________

Respondents.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Petitioners, v.

COMMONWEALTH OF MASSACHUSETTS, ET AL., Respondents.
_____________

On Petitions for a Writ of Certiorari to the United States Court of Appeals for the First Circuit
_____________

BRIEF IN RESPONSE OF NANCY GILL ET AL. _____________

FOLEY HOAG LLP

GAY & LESBIAN ADVOCATES &

Claire Laporte

DEFENDERS

Ara B. Gershengorn

Gary D. Buseck

Matthew E. Miller

Mary L. Bonauto*

Catherine Deneke

Vickie L. Henry

155 Seaport Blvd.

Janson Wu

Boston, MA 02210

30 Winter Street, Suite 800

(617) 832-1000

Boston, MA 02108

SULLIVAN & WORCESTER LLP David J. Nagle

(617) 426-1350 mbonauto@glad.org

Richard L. Jones

JENNER & BLOCK LLP

One Post Office Square

Paul M. Smith

Boston, MA 02109

Luke C. Platzer

(617) 338-2800

Matthew J. Dunne

*Counsel of Record

Melissa A. Cox 1099 New York Ave, NW, Suite 900

Washington, DC 20001

(202) 639-6000

COUNSEL FOR RESPONDENTS NANCY GILL, ET AL.

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act defines “marriage” for purposes of all federal statutes, regulations, and agency interpretations as the union of one man and one woman and defines “spouse” as a husband or wife of someone of the opposite sex. 1 U.S.C. § 7. As a result, with respect to more than 1,100 federal statutes, lawfully married same-sex couples are denied the benefits and responsibilities accorded to lawfully married opposite-sex couples.
The question presented is:
Whether Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples.

ii
PARTIES TO THE PROCEEDING
The Respondents are Nancy Gill and Marcelle Letourneau, Martin Koski and James Fitzgerald, Dean Hara, Mary Ritchie and Kathleen Bush, Melba Abreu and Beatrice Hernandez, Marlin Nabors and Jonathan Knight, Mary Bowe-Shulman and Dorene Bowe-Shulman, Jo Ann Whitehead and Bette Jo Green, Randall Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the U.S. House of Representatives was an intervenor in the court below and is a Petitioner here.
Separate Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
The Commonwealth of Massachusetts was also an Appellee in the court below and is a Respondent in this Court.

iii TABLE OF CONTENTS
QUESTION PRESENTED...........................................i
PARTIES TO THE PROCEEDING ............................ii
TABLE OF AUTHORITIES.......................................vi
INTRODUCTION ........................................................ 1
STATEMENT .............................................................. 1
A. DOMA’s Enactment. .............................. 2
B. Respondents Suffer From Their Disparate Treatment Under DOMA..................................................... 6
C. Procedural Background And The Opinions Below. ................................... 12
REASON FOR GRANTING THE WRIT .................. 16
I. There Is No Dispute That This Case Raises Questions Of National Importance That Are Ripe For Review. ......... 16
II. The First Circuit Faithfully Applied This Court’s Rational Basis Precedents To Invalidate Section 3 Of DOMA. ................ 18

iv
A. The First Circuit Correctly Recognized The Importance Of Context In Rational Basis Analysis. ............................................... 18

B. The First Circuit Correctly

Identified

Federalism

Considerations As Further

Meriting Careful Review. .................... 20

C. The First Circuit’s Application Of Rational Basis Review Followed Well-Established Principles. ............... 23

D. DOMA Can Be Explained Only By Impermissible Disapproval And Exclusion Of Gay Men And Lesbians. .............................................. 29

III. This Court Should Decide Whether Heightened Scrutiny Applies To Discrimination On The Basis Of Sexual Orientation...................................................... 31

v
A. The Two Essential Factors (Historical Discrimination And Contribution To Society) Are Easily Satisfied. ................................... 34

B. Gay Men And Lesbians Are A Minority And Face Significant Obstacles To Winning Political Protections Democratically.................. 35

C. Sexual Orientation Is An

Enduring

And

Defining

Characteristic....................................... 37

CONCLUSION .......................................................... 39

CASES

vi TABLE OF AUTHORITIES

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959)................................................. 22
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).............. 3 Baker v. Nelson, 409 U.S. 810 (1972)................... 17 Board of Trustees of University of Alabama
v. Garrett, 531 U.S. 356 (2001) ................. 28, 30 Bond v. United States, 131 S. Ct 2355
(2011)................................................................ 22 Bowen v. Gilliard, 483 U.S. 587 (1987) .......... 34, 37 Bowers v. Hardwick, 478 U.S. 186 (1986),
overruled by, Lawrence v. Texas, 539 U.S. 558 (2003)................................................. 32 Christian Legal Society of the University of California v. Martinez, 130 S. Ct. 2971 (2010)................................................................ 37 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)...... 14, 18, 19, 20, 27, 31, 33 De Sylva v. Ballentine, 351 U.S. 570 (1956) .......... 2 Ensminger v. Commissioner, 610 F.2d 189 (4th Cir. 1979) .................................................... 3 Frontiero v. Richardson, 411 U.S. 677 (1973).................................................... 16, 35, 37 High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) .................................................. 32

vii Kerrigan v. Commissioner of Public Health,
957 A.2d 407 (Conn. 2008) ........................ 36, 38 Lawrence v. Texas, 539 U.S. 558
(2003)........................................ 26, 31, 32, 33, 34 Lofton v. Security of Department of
Children & Family Services, 358 F.3d 804 (11th Cir. 2004) ......................................... 32 Lyng v. Castillo, 477 U.S. 635 (1986) ................... 34 Moore v. City of East Cleveland, 431 U.S. 494 (1977)......................................................... 33 Nashville, Chattanooga & St. Louis Railway v. Walters, 294 U.S. 405 (1935)....................... 24 National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)................................................................ 22 Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009).......................................................... 14, 21 Nyquist v. Mauclet, 432 U.S. 1 (1977) ................. 37 Palmore v. Sidoti, 466 U.S. 429 (1984) .......... 15, 26 Pedersen v. Office of Personnel Management, No. 3:10-cv-1750 (D. Conn. July 31, 2012)................................................... 31 Plyler v. Doe, 457 U.S. 202 (1982) ...... 15, 20, 24, 34 Romer v. Evans, 517 U.S. 620 (1996) ........... passim Stanley v. Illinois, 405 U.S. 645 (1972) ................ 33

viii Steffan v. Perry, 41 F.3d 677 (D.C. Cir.
1994) ................................................................. 32 United States v. Carolene Products Co., 304
U.S. 144 (1938)................................................. 24 United States v. Lopez, 514 U.S. 549 (1995) . 14, 21 United States v. Morrison, 529 U.S. 598
(2000).......................................................... 14, 21 United States v. Virginia¸ 518 U.S. 515
(1996)................................................................ 33 United States Department of Agriculture v.
Moreno, 413 U.S. 528 (1973) ... 14, 18, 19, 20, 30 United States Railroad Retirement Board v.
Fritz, 449 U.S. 166 (1980) ............................... 30 Watkins v. United States Army, 875 F.2d
699 (9th Cir. 1989) ........................................... 38 STATUTES
18 U.S.C. § 2333 ...................................................... 6 Act of Oct. 31, 1951, ch. 655, § 1, 65 Stat.
710 ...................................................................... 6 Defense of Marriage Act, Pub. L. No. 104-
199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 ........................................................... 2 5 C.F.R. § 831.613(e)(1)(v) .................................... 28 5 C.F.R. § 842.605(e)(1)(v) .................................... 28 5 C.F.R. § 1651.5(b)............................................... 28 20 C.F.R. § 10.415 ................................................. 28 20 C.F.R. § 219.32 ................................................. 28

ix 20 C.F.R. § 222.11 ................................................. 28 20 C.F.R. § 222.13 ................................................. 28 20 C.F.R. § 404.345 ............................................... 28 20 C.F.R. § 404.726 ............................................... 28 28 C.F.R. § 32.3 ..................................................... 28 29 C.F.R. § 825.113 ............................................... 28 38 C.F.R. § 3.1(j).................................................... 28 LEGISLATIVE MATERIALS 142 Cong. Rec. 16,799 (1996).................................. 5 142 Cong. Rec. 16,972 (1996).................................. 5 142 Cong. Rec. 17,074 (1996).................................. 5 142 Cong. Rec. 17,082 (1996).................................. 5 142 Cong. Rec. 17,089 (1996).................................. 4 142 Cong. Rec. 22,334 (1996).................................. 5 H.R. Rep. No. 104-664 (1996), reprinted in
1996 U.S.C.C.A.N. 2905 .......................... 4, 5, 29 OTHER AUTHORITIES
Nancy Cott, Public Vows (2000) ............................. 2 I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6,
1990) ................................................................... 3 Social Security Ruling 84-18: Validity of
Marriage - Estoppel – Ohio ............................. 28 Social Security Ruling 63-20 - Validity of
Marriage Between First Cousins .................... 28

x U.S. General Accountability Office, GAO-
04-353R, Defense of Marriage Act: Update to Prior Report (2004)........................... 6 U.S. General Accountability Office, GAO/OGC-97-16, Defense of Marriage Act (1997) ........................................................... 6

INTRODUCTION
Respondents Nancy Gill et al., the individual plaintiffs in Gill v. Office of Personnel Management, submit this response to the petitions for certiorari filed by the Bipartisan Legal Advisory Group (“BLAG”) (No. 12-13) and by the federal defendants (No. 12-15). Respondents agree that the issues presented are of great importance and require definitive resolution by this Court. However, the Court should not, in weighing whether to grant review, be persuaded by the distorted analysis of the merits of the case that BLAG presents in its petition. The First Circuit faithfully applied this Court’s precedents concerning rational basis scrutiny in deciding that Section 3 of the Defense of Marriage Act violates the equal protection guarantee by selectively denying any federal recognition to legally valid marriages simply because the married couples are of the same sex. Moreover, unlike the First Circuit (which believed itself constrained by circuitlevel precedent), this Court is free to recognize that such overt discrimination against a class defined by its members’ sexual orientation requires heightened equal protection scrutiny. While the statute does not survive even rational basis review, application of heightened scrutiny will provide prospective clarity to lower courts.
STATEMENT
Nancy Gill and the other 16 Respondents are all lawfully married or widowed. They exercise all of the rights and discharge all of the responsibilities of married (or widowed) people in Massachusetts.

2
Their marriages, however, are excluded from any federal recognition by Section 3 of the Defense of Marriage Act, Pub. L. No. 104-199, 100 Stat. 2419 (1996), codified at 1 U.S.C. § 7 (“DOMA”). DOMA for the first and only time in history establishes a federal definition of “marriage” and “spouse.” While Massachusetts treats the Gill Respondents and all other same-sex married couples identically to their opposite-sex married counterparts, DOMA takes the class of married persons and divides it in two: those who are married for federal purposes and those whose marriages do not exist for any federal purpose.
A. DOMA’s Enactment.
From the founding of this country until DOMA’s enactment in 1996, the states governed marriage. State laws have always differed as to eligibility, including the age of consent, permissibility of interracial marriages, permissible degrees of consanguinity, availability of divorce, and recognition of common law marriages. Such conflicts sometimes led to “explosive” debates among the States. See, e.g., Nancy Cott, Public Vows 163 (2000).
The federal government never inserted itself into these debates by defining any dimension of marital eligibility for all federal purposes. Instead, it looked to the relevant state’s definition of marriage: a couple that was married under the law of the state was married under federal law. See De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (“The scope of a federal right is . . . a federal question, but that does not mean that its content is not to be determined by

3
state, rather than federal law . . . This is especially true where a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern.”); Appendix to Petition for a Writ of Certiorari filed by U.S. Department of Health and Human Services, et al. (“DOJ App.”) at 64a (“In 1996 . . . . the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law.”) (emphasis in original).
The federal government maintained this deference to state law notwithstanding wide diversity in the benefits available to couples. As the Fourth Circuit explained in Ensminger v. Comm’r, 610 F.2d 189 (4th Cir. 1979), the diversity:
produces some inequality in taxation, but it illustrates the deference Congress has demonstrated for state laws in this area and its attempts to insure that, in the application of federal tax laws, taxpayers will be treated in their intimate and personal relationships as the state in which they reside treats them.
Id. at 191, accord I.R.S. Priv. Ltr. Rul. 91-09-060 (Dec. 6, 1990).
In 1996, Congress disrupted this centuries-old status quo by passing DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which raised the possibility that same-sex couples could soon begin marrying. The House Judiciary Committee’s Report on DOMA warned that “a redefinition of marriage in Hawaii to

4
include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” H.R. Rep. No. 104-664, at 10-11 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2914-15 (“House Report”).
The House Report acknowledged that “[t]he determination of who may marry in the United States is uniquely a function of state law,” id., at 3, reprinted in 1996 U.S.C.C.A.N. at 2907, but stated that the Committee was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’” id. at 12, reprinted in 1996 U.S.C.C.A.N. at 2916, and claimed Congressional interests in, inter alia, “defend[ing] the institution of traditional heterosexual marriage,” “encouraging responsible procreation and child-rearing,” conserving scarce resources, and reflecting Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id. at 12, 13, 16, reprinted in 1996 U.S.C.C.A.N. at 2916, 2917, 2920 (footnote omitted).
The remarks of Representative Hyde, thenChairman of the House Judiciary Committee, were blunt but typical: “[M]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law . . . . It is . . . the only way possible to express this disapprobation.” 142 Cong. Rec. 17,089 (1996). In the floor debate on DOMA, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion,” and

5
“an attack on God’s principles.” See id. at 16,972 (statement of Rep. Coburn); id. at 17,074 (statement of Rep. Buyer); id. at 17,082 (statement of Rep. Smith). They argued that marriage by gay men and lesbians might be “the final blow to the American family.” Id. at 16,799 (statement of Rep. Largent). Senator Helms stated:
[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle – these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . . Homosexuals and lesbians boast that they are close to realizing their goal – legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.
Id. at 22,334.
Although DOMA amended the eligibility criteria for a vast number of benefits, rights, and privileges dependent upon marital status, the relevant Congressional committees did not engage in any meaningful examination of the scope or effect of the law. Neither chamber of Congress heard testimony from economists, historians, sociologists or specialists in child welfare. Congress did not solicit relevant agency heads or endeavor in any other way to understand the scope of the Act. Indeed, the House Report characterized Section 3 as a “narrow federal requirement.” H.R. Rep. 104-664 at 30, reprinted in 1996 U.S.C.C.A.N. at 2935.

6
But DOMA neither was nor is “narrow.” Since its passage, DOMA has implicated more than 1,100 federal statutory provisions, extending from Social Security to taxation and health care, from employee benefits to terrorism victim recovery. See, e.g., U.S. General Accountability Office, GAO-04-353R, Defense of Marriage Act: Update to Prior Report (2004); U.S. General Accountability Office, GAO/OGC-97-16, Defense of Marriage Act (1997); see also 18 U.S.C. § 2333.
Not surprisingly, defining a term for the entirety of the United States Code is uncommon, and at the time of DOMA, no new definitions had been added to the Dictionary Act, and the existing definitions had not been amended, for nearly half a century. See Act of Oct. 31, 1951, ch. 655, § 1, 65 Stat. 710 (substituting “used” for “use” in fourth clause after opening clause of 1 U.S.C. § 1).
B. Respondents Suffer From Their Disparate Treatment Under DOMA.
DOMA compels all federal agencies to disregard the lawful marriages entered into by each of the Respondents, most of whom married after decadeslong dedicated relationships. As a class-based enactment, DOMA is a federal declaration that the Respondents’ marriages are not “real marriages” and merit no respect under any federal law. This “adds stress and confusion to everyday situations,” “complicate[s] even ordinary transactions,” is “upsetting and painful” on an individual level, makes the Respondents “feel like . . . fractured famil[ies],” “conveys disrespect for [their] marriage[s] to the

7
wider world,” and signals “that others do not have to respect” the Respondents’ marriages.1
For the seventeen Respondents in the Gill case, there is no dispute that DOMA, and only DOMA, denies them equal access to particular federal programs.2 DOMA concretely and continuously harms them and their children. The record reveals the following harms:
Nancy Gill and Marcelle Letourneau: Nancy Gill, a long-serving employee of the U.S. Post Office, and Marcelle Letourneau, a nursing services administrator, have been a couple since 1980 and married since 2004. Nancy sought to add Marcelle to her federal health insurance coverage, vision benefit plan, and flexible spending account, as do other federal employees for their spouses, but she was denied these protections because of DOMA.3 Although the couple’s two children are covered under Nancy’s Federal Employee Health Benefit Program (FEHB) plan, Marcelle has had to remain in the work force to maintain access to her own health
1 The quotations are taken from unrebutted Affidavits from the Individual Plaintiffs (now Respondents) in Support of their Motion for Summary Judgment. Further undisputed facts are drawn from the Second Amended Complaint.
2 See nn. 3-7 infra.
3 Nancy first sought FEHB coverage for her spouse in 2004, which was denied. When she attempted to re-apply for benefits in 2008, the Postal Ease system would not accept her entries, and agency staff confirmed that DOMA foreclosed her application.

8 insurance and has been unable to fulfill their family’s dream of having her stay at home with their two children.
Martin Koski and James Fitzgerald: Martin “Al” Koski, a retired employee of the Social Security Administration, and James “Jim” Fitzgerald, a recovery aide at a treatment center, have been life partners since 1975 and married since 2007. In their nearly 40 years together, they have suffered through grave health problems and the illnesses and deaths of parents. Although Al is otherwise qualified, DOMA required OPM to deny Al’s application to enroll his spouse in the FEHB plan.4 As a result, Al and Jim have incurred additional insurance expenses, prescription costs and uninsured medical expenses.
Herbert Burtis: Herbert “Herb” Burtis and his late husband John Ferris were both musicians and music teachers who were together for 60 years and married in 2004. Herb cared for John during the 16year period in which John suffered from Parkinson’s Disease, serving as his principal advocate and caregiver. The Social Security Administration’s treatment of Herb after John’s death in August 2008—mandated by DOMA—only compounded Herb’s grief by treating him differently and denying him both the “One Time Lump-Sum Death Benefit
4 Al’s application for benefits and request for reconsideration were both denied by OPM because of DOMA.

9
and the survivor benefit because DOMA required that his spouse be a woman and not a man.5
Randell Lewis-Kendell: For 30 years, Randell “Randy” Lewis-Kendell, a shop owner, was partnered with his now-deceased husband, Robert LewisKendell, whom he married in 2004. In 1993, they moved to Cape Cod and opened a small gift shop. In 2002, Robert was diagnosed with cancer. When Robert passed away in 2007, Randy repeatedly contacted the company holding his deceased husband’s mortgage but the company refused to speak with him because it did not understand his marriage. The federal government’s rejection of Randy’s legal marriage pursuant to DOMA under which Randy has been denied the Lump-Sum Death Benefit reinforced this general lack of understanding.
Dean T. Hara: Dean Hara, a financial planner, is the surviving spouse of Gerry Studds, a former Member of the United States Congress who retired from federal service in January 1997. Dean and Gerry became a couple in 1991 and married in 2004. When Gerry died unexpectedly in 2006, Dean, too,
5 All of the Respondents with Social Security-based claims applied for and were denied benefits. Herb was denied both the “One-Time Lump-Sum Death Benefit” and the Social Security survivor benefit. Herb, as well as Randell Lewis-Kendell and Jo Ann Whitehead, all contested the denial of the benefits for which they applied within the Social Security Administration. The agency has stipulated that the sole issue precluding benefits is DOMA, the statute whose constitutionality is questioned.

10
was denied the Lump-Sum Death Benefit from Social Security due to DOMA. Dean was also denied both FEHB health insurance and the annuity normally available to surviving spouses. As a result, he has been forced to incur significant costs, not incurred by other widowed spouses of Members of Congress, to purchase his own insurance.6
Bette Jo Green and Jo Ann Whitehead: Bette Jo Green and Jo Ann Whitehead have been together since 1981, were married in 2004, and have seen each other through their own illnesses with cancer and the deaths of family members. As a retired labor and delivery nurse, Bette Jo’s income has exceeded that of Jo Ann, a garden educator. Both receive primary insurance benefits from Social Security based on their own work records, but because of DOMA, Jo Ann has been denied the “spousal benefit” otherwise available to a lower-earning spouse. Unlike other married couples, both women are also extremely concerned about Jo Ann’s likely financial circumstances should Bette Jo, a two-time cancer survivor, predecease her and Jo Ann be denied the Social Security spousal survivor benefit because of DOMA.
Melba Abreu and Beatrice Hernandez: Melba Abreu, the chief financial officer of a Boston-area nonprofit organization, and Beatrice Hernandez, a
6 The constitutionality of DOMA, as applied to Dean’s claims for a spousal annuity and health insurance, has been the subject of administrative proceedings. An appeal from those proceedings is pending but stayed in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. Oct. 15, 2010).

11
writer developing a web design business, have been a committed couple since 1987. Since marrying in 2004, they have filed their state income tax returns with the Commonwealth of Massachusetts as Married Filing Jointly, but unlike other married couples, they are forbidden by DOMA from doing so for their federal income tax returns. Because they filed their federal returns as “single,” they have borne a higher aggregate tax burden and been compelled to misrepresent their marital status.
Mary Ritchie and Kathleen Bush: Mary Ritchie, a longtime Massachusetts State Trooper and now State Police Lieutenant, and Kathleen Bush, a former sales and marketing worker at a medical journal, have been a committed couple since 1990 and were married in 2004. Kathleen temporarily set aside her career once they had children because of the demands of Mary’s job. She currently stays home with their children and volunteers in their school and community. Because of DOMA, Mary has been unable to contribute to a “spousal IRA” for Kathleen, who is currently earning no income. The couple has also incurred additional federal income tax for every year since their marriage due to both their inability to file jointly and Mary’s inability to contribute to Kathleen’s IRA.
Mary and Dorene Bowe-Shulman: Mary BoweShulman, an attorney employed by the Commonwealth of Massachusetts, and Dorene BoweShulman, a self-employed acupuncturist, have been together since 1996 and have two daughters. In 2004, they were legally married. As a married

12
couple, they receive health insurance provided through Mary’s employment with the Commonwealth, but because of DOMA, the couple has been forced to pay federal income taxes on Dorene’s benefits. Mary’s co-workers who are married to spouses of the opposite sex do not pay this tax penalty. Mary and Dorene have also been unable to file jointly. Both circumstances have resulted in their paying higher taxes than other similarly situated married families with children.
Marlin Nabors and Jonathan Knight: Marlin Nabors, a college administrator, and Jonathan Knight, a university finance administrator, have been a couple since 2004. In 2006, they “reached a point in [their] relationship when [they] knew that [they] would be together for life, no matter what,” and so they “solidif[ied their] commitment through marriage.” They, too, have been required by DOMA to file their federal income tax returns as “single” and have paid higher federal income taxes for several years than if they had filed as “married filing jointly.” Like all of the plaintiffs, they simply want their marriage “to be treated like any other” and if, down the road, they “would owe more money as a married couple, then [they] would want to pay that amount. [They] want to pay [their] fair share.”
C. Procedural Background And The Opinions Below.
Respondents filed their Complaint in the District Court of Massachusetts on March 3, 2009, alleging that DOMA’s discrimination among married couples violates the equal protection guarantee of the Fifth

13
Amendment to the Constitution. Gill v. Office of Personnel Management, et al., 1:09-cv-10309, Dkt. No. 1. The Office of Personnel Management and other Defendants moved to dismiss and Respondents (Gill, et al.) moved for summary judgment. See DOJ App. at 44a n. 68.
The district court issued its decision on July 8, 2010, granting the motion for summary judgment, denying the government’s motion to dismiss, and holding that DOMA violates the Fifth Amendment. Id. at 29a, 72a. The court held that “‘there exists no fairly conceivable set of facts that could ground a rational relationship’ between DOMA and a legitimate government objective.” Id. at 51a (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005)). An appeal was filed to the U.S. Court of Appeals for the First Circuit.
In early 2011, the President and Attorney General notified Congress of their conclusion that DOMA violates the equal protection guarantee of the Fifth Amendment. See App. E to BLAG Petition for Writ of Certiorari. The Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) subsequently moved to intervene, which the First Circuit permitted. See DOJ App. at 6a. Following briefing and extensive amicus participation, the First Circuit on May 31, 2012, affirmed the district court’s holding. See id. at 26a.
Writing for a unanimous panel, Judge Boudin concluded that “[u]nder current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts

14
has not been adequately supported by any permissible federal interest.” Id. at 24a. The Court stated that the burdens suffered by the 17 Respondents were akin to those suffered by the plaintiffs in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996). DOJ App. at 14a. Applying rational basis review as the Court did in those cases, the First Circuit held that DOMA did not survive such review. Id. at 22a23a.
The First Circuit also noted that DOMA intruded upon an area of governance typically reserved for the states: “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.” Id. at 17a-18a (relying upon, inter alia, Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995)). The court held that DOMA did not survive this closer rational basis examination.
The First Circuit held that neither the reasons offered in the House Report nor any subsequently offered justifications were sufficient to justify DOMA. Id. As to the “moral disapproval of homosexuality,” the First Circuit held that “Lawrence and Romer have undercut this basis.”

15
DOJ App. 21a-22a (citing, inter alia, Palmore v. Sidoti, 466 U.S. 429, 433 (1984)).
As to preserving government resources, the court held that saving money by targeting one particular and historically disadvantaged class of people actually undermines rather than bolsters a legitimate justification under this Court’s precedents. See DOJ App. at 19a-20a (citing Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635).
And as to the proposed justifications related to child-rearing and heterosexual marriage, the First Circuit held that: (1) DOMA cannot prevent samesex couples in Massachusetts from adopting or “prevent a woman partner from giving birth to a child to be raised by both partners”; (2) DOMA does not increase benefits to opposite-sex married couples; (3) DOMA does not explain how “denying benefits to same-sex couples will reinforce heterosexual marriage”; and (4) “[c]ertainly the denial [of such benefits] will not affect the gender choices of those seeking marriage.” DOJ App. at 20a-21a. Accordingly, the court held:
This is not merely a matter of poor fit of remedy to perceived problem . . . but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
Id. at 21a (citations omitted).

16
The First Circuit noted Petitioner’s argument that Congress, “faced with a prospective change in state marriage laws” in 1996, was “entitled to ‘freeze’ the situation and reflect,” id. at 22a, but held that the statute was “not framed as a temporary timeout,” and the House Report’s “own arguments – moral, prudential and fiscal – make clear that DOMA was not framed as a temporary measure,” id.
At both the district court and appellate levels, Respondents argued that legislation that discriminated against gay men and lesbians should be afforded heightened scrutiny. Neither court addressed whether gays and lesbians met the criteria meriting such heightened scrutiny. See e.g., Frontiero v. Richardson, 411 U.S. 677 (1973). The district court determined it need not address these arguments because it concluded that “DOMA fails to pass constitutional muster even under the highly deferential rational basis test.” DOJ App. at 51a. The First Circuit believed that it was bound by prior Circuit precedent, see id. (interpreting Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)), and resolved the case on rational basis review.
REASON FOR GRANTING THE WRIT
I. There Is No Dispute That This Case Raises Questions Of National Importance That Are Ripe For Review.
As both BLAG and the government argue, BLAG Pet. 17-22; DOJ Pet. 22-23, this case raises questions of national importance. The denial of federal recognition of marriages mandated by Section 3 of DOMA sweeps across an “unprecedented number of

17
statutes,” BLAG Pet. 19; see DOJ Pet. 22, affecting a great number of people. As the First Circuit noted, more than 100,000 existing married same-sex couples are disadvantaged in myriad ways, DOJ App. 4a, and the statute makes federal rights and benefits unavailable to countless others who may marry and form families in the future.7 Furthermore, as Petitioners note, this Court has long recognized the importance of review where decisions strike down federal statutes. BLAG Pet. 17-18; DOJ Pet 13-14.
For these reasons, the arguments for a grant of review in this case are strong. In weighing them, however, the Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition. As discussed in the following section, there is no validity to the claim that the First Circuit somehow distorted equal protection jurisprudence in concluding that DOMA fails rational basis scrutiny.
7 While BLAG agrees that this case presents important questions, it argues that the constitutionality of DOMA is already decided by Baker v. Nelson, 409 U.S. 810 (1972). BLAG Pet. 24. Leaving aside the question of whether Baker still retains any precedential value (a proposition Respondents dispute), Baker is irrelevant here. Baker hinged on whether there is a constitutional right to marry. DOJ App 2a. That question is not at issue in this case, which asks instead whether the federal government can discriminate against a class of people who are already married. These questions do not require the same, or even similar, analyses because the federal government has no interest in licensing marriages. The fact that affected couples, including Respondents, are (or were) already married alters the constitutional analysis. The court below distinguished Baker on precisely these grounds. DOJ App 7a-8a.

18
To the contrary, as multiple courts have recently recognized, there are compelling arguments that Congress violated the equal protection guarantee when it decided for the first time to deny all recognition to a single class of state-sanctioned marriages.
II. The First Circuit Faithfully Applied This Court’s Rational Basis Precedents To Invalidate Section 3 Of DOMA.
BLAG devotes much of its Petition to arguing the merits of the case, contending that the First Circuit erred by “inventing and applying to [DOMA] . . . a previously unknown standard of equal protection review.” BLAG Pet. i (Question Presented No. 2); see id. at 28-34. This does not accurately characterize the First Circuit’s holding or analysis. The court of appeals did not “invent” a new standard of review but rather applied this Court’s rational basis holdings in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1985), City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1973), and Romer v. Evans, 517 U.S. 620 (1996). The First Circuit’s unanimous decision that DOMA cannot withstand application of those precedents is faithful to this Court’s jurisprudence and should be affirmed.
A. The First Circuit Correctly Recognized The Importance Of Context In Rational Basis Analysis.
In Moreno, Cleburne, and Romer, the First Circuit noted, the Court has not afforded the “extreme deference accorded to ordinary economic legislation.” DOJ App. 14a. Although those

19
decisions “did not adopt some new category of suspect classification,” they analyzed, in applying the rational basis test, “the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered.” DOJ App. 12a (emphasis added). As discussed in Part II.C infra, the First Circuit correctly analyzed DOMA, and the justifications advanced on its behalf, using precisely such an analysis.
Based on the First Circuit’s recognition that this Court’s precedents do not apply some one-size-fits-all rational basis review but rather apply rational basis review with sensitivity to the context in which the cases arise, BLAG accuses the First Circuit of “deviat[ing] from settled law,” BLAG Pet. 18 and “inventing” a new form of equal protection review. Id. at 26. Not so.
At the outset, BLAG overstates the extent to which the First Circuit differentiated between the approach in Moreno, Cleburne, and Romer and the “extreme deference accorded to ordinary economic legislation.” DOJ App. 14a. It did so only with respect to one claimed interest – the Congressional goal of preserving fiscal resources and the means for accomplishing said goal – noting that courts are normally highly deferential to such objectives, yet this Court’s rational basis cases insist that there be a rational connection between a statute and cost cutting where an unpopular group bears the burden. The fact that Moreno involved federal funds, for instance, did not automatically warrant complete deference to the decision to deny those funds to

20
group households. When it comes to cutting costs, the government must justify its choice of a particular group to bear the burden of cuts. See Plyler v. Doe, 457 U.S. 202, 227 (1987).
The First Circuit’s acknowledgment of this principle does not represent a departure from “traditional” or “conventional” rational basis review, BLAG Pet. at 30, but simply a recognition that the application of rational basis review is contextdependent. While BLAG objects, Moreno, Cleburne, and Romer do in fact illustrate that where unpopular groups or historically disadvantaged minorities are concerned, the Court has, in fact, been careful to scrutinize claims of “fit” between a policy and its stated objectives (Moreno); found alleged legislative interests unconvincing (Cleburne); and not hesitated to find a lack of a relationship between a statusbased enactment and legitimate interests (Romer). Regardless of its word choice – e.g., “intensified scrutiny,” “greater rigor,” or “closer examination,” DOJ. App. 11a, 13a, 15a – the First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts for discrimination against a disfavored group.
B. The First Circuit Correctly Identified Federalism Considerations As Further Meriting Careful Review.
BLAG further errs by arguing that the First Circuit’s decision adopted a “new standard of review as a fusion of federalism and equal protection concerns.” BLAG Pet. 15. At the outset, this is not

21
an accurate description of the First Circuit’s holding: the Court identified both the “disparate impact on minority interests” and “federalism concerns” as each independently meriting “somewhat more in this case than automatic deference to Congress’ will.” DOJ App. 22-23a.
The First Circuit was in any event correct that this Court’s “precedent[s] relating to federalismbased challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications.” Id. at 14a-15a (emphasis added). As the First Circuit noted, this Court has scrutinized with special care federal statutes that intrude on areas customarily within state control. See, e.g., United States v. Morrison, 529 U.S. 598, 612-613 (2000) (closely scrutinizing federal interests in statute imposing upon police powers); United States v. Lopez, 514 U.S. 549 (1995) (same); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (state election processes). Because DOMA represents an unprecedented attempt to create a federal standard with respect to a marital feature, the First Circuit rightly considered DOMA’s departure from federalist tradition as similarly meriting careful consideration of the statute’s constitutionality. See DOJ. App. 14a-18a.
While BLAG questions the First Circuit’s reliance on federalism to inform its equal protection analysis because “the Constitution’s equal protection guarantees exist to constrain government action, not to protect the states,” BLAG Pet. 32-33, this Court has repeatedly recognized that federalism also

22
protects individuals, see, e.g., Bond v. United States, 131 S. Ct. 2355, 2363-64 (2011) (an “individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines”), and “secures to citizens the liberties that derive from the diffusion of sovereign power,” Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (quoting New York v. United States, 505 U.S. 144, 181 (1992)). See also id. (“[F]ederalism protects the liberty of the individual from arbitrary power.”) (quoting Bond, 131 S. Ct. at 2364)); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 532 (1959) (Brennan, J., concurring) (“[T]he Equal Protection Clause, among its other roles, operates to maintain this principle of federalism . . . . [and] as an instrument of federalism.”).
The First Circuit’s consideration of federalism to inform the equal protection analysis therefore flows logically from this Court’s precedents. The enactment of DOMA as a federal marriage standard is a historical anomaly, given the states’ traditional role in regulating marital relationships, and as this Court noted in Romer, “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). See also Sebelius, 132 S. Ct. at 2586 (“Sometimes the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent for Congress’s action.”) (internal quotation marks omitted; alterations in original).

23
The First Circuit did not, therefore, invent some novel equal protection standard as BLAG charges, but rather faithfully analyzed this Court’s precedents and properly identified DOMA’s historically anomalous nature as meriting careful application of the rational basis standard.
C. The First Circuit’s Application Of Rational Basis Review Followed Well-Established Principles.
The rational basis analysis the First Circuit actually applied to consider and ultimately reject each of the proffered government interests for DOMA further belies BLAG’s assertion that it invented some “new” form of review. The First Circuit evaluated each of the four contemporaneous rationales for DOMA articulated in the House Report: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-government; and (4) preserving scarce government resources,” H.R. Rep. 104-664, at 12, reprinted in 1996 U.S.C.C.A.N. at 2916 (1996), as well as additional post hoc rationales posited by BLAG, such as “to support child-rearing in the context of stable marriage,” “reinforc[ing] heterosexual marriage,” and reacting to a “prospective change in state marriage laws.” DOJ App. at 22a. The First Circuit’s analysis and rejection of each rationale tracks this Court’s approach.
Notwithstanding BLAG’s incorrect assertion that the First Circuit “recognized expressly that DOMA

24
passes the rational basis test,” BLAG Pet. 14, the only rationale where the First Circuit indicated that “the extreme deference accorded to ordinary economic legislation” would otherwise suffice to sustain DOMA is the “public fisc” rationale. See DOJ App. at 9a. Both the First Circuit and the district court below rejected the “public fisc” rationale, DOJ App. 19a-20a; 57a-58a, and rightly so. This Court has made clear that a mere desire to conserve resources cannot explain a distinction drawn against a historically disadvantaged group. See Plyler, 457 U.S. at 219-21, 227; Romer, 517 U.S. at 635.8 The First Circuit correctly recognized that saving money is not enough – rational basis review also requires a justification for choosing a particular unpopular group or minority to bear the burden of cost cutting. See DOJ App. at 19a-20a.
Congress’s family-law-based justifications (as augmented by BLAG’s post hoc arguments, which the First Circuit considered as well) fare no better. BLAG argued below that DOMA is a way to support child-rearing in the context of heterosexual
8 Recent analysis also shows that DOMA costs rather than saves money. DOJ App. at 19a-20a. Irrespective of what a hypothetical Congress might have thought at the time, such facts negate the “public fisc” rationale. See, e.g., United States v. Carolene Products Co., 304 U.S. 144, 153 (1938) (“[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”); Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 415 (1935) (“A statute valid when enacted may become invalid by change in the conditions to which it is applied.”).

25
marriage. But there is no rational contention that discriminating against same-sex married couples supports parenting by opposite-sex couples: federal rights and benefits that support childbearing do so whether or not the government discriminates against same-sex couples.
Moreover, DOMA is not focused on childbearing. The laws DOMA rewrote apply to, benefit, and burden married couples without regard to whether they have, intend to have, or are capable of having children. These laws simply bear no relationship to encouraging marriage by unwed future parents.
The First Circuit (and the district court) thus correctly rejected Congress’s family-law-based justifications. As the First Circuit panel explained, DOMA does not increase benefits to opposite-sex couples—“whose marriages may in any event be childless, unstable, or both.” DOJ App. 21a. Nor can anyone “explain how discriminating against samesex couples will reinforce heterosexual marriage.” Id. Certainly there is no reason to believe that DOMA will affect one’s marital or procreative choices. As such, “[t]his is not merely a matter of poor fit of remedy to a perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.” Id. (internal citations omitted) (citing Lee Optical, 348 U.S. at 487-88 and Cleburne, 473 U.S. at 446-50); see also DOJ Pet. 55a56a (explaining that Congress’s “asserted interest in defending and nurturing heterosexual marriage is

26
not grounded in sufficient factual context . . . to ascertain some relation between it and the classification DOMA effects”) (internal quotation marks omitted) (quoting Romer, 517 U.S. at 632-33)). Again, the First Circuit’s analysis tracks neatly this Court’s longstanding doctrine that laws “so far removed from” their justifications that it is “impossible to credit them” cannot survive rational basis scrutiny. Romer, 517 U.S. at 635.
The First Circuit likewise correctly recognized that under this Court’s precedent, Congress’s next proffered rationale, moral disapproval of homosexuality, is equally flawed. That rationale, as both the First Circuit and the district court below recognized, has been foreclosed by this Court’s decisions in Lawrence and Romer, which counsel that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law.” Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1996) (Stevens, J., dissenting)); see also DOJ App. 21a-22a; 57a; cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Equally unavailing is BLAG’s argument, also asserted below, that DOMA furthers a federal interest in “national uniformity” in the substantive definition of marriage. Again, this rationale bears no recognizable relationship to the statute: DOMA does not create uniform eligibility for federal benefits. As the district court below noted, every variation of state marriage laws remains incorporated in federal

27
law for heterosexual couples; it is only same-sex couples who are affected by DOMA. DOJ App. 60a61a. Platitudes like “uniformity” do not explain the legitimacy of this choice to separate out gay men and lesbians for differential treatment.
At best, DOMA treats identically situated married couples (same-sex and opposite-sex) differently in order to treat all same-sex couples (married and unmarried) the same. But that purpose is hardly legitimate. This Court’s equal protection jurisprudence requires that similarly situated persons receive the same treatment. Cleburne, 473 U.S. at 439. Treating legally married same-sex couples differently from identically situated, legally married opposite-sex couples solely to equalize the treatment of married and unmarried same-sex couples turns that principle on its head.
BLAG failed below to offer any legitimate argument why the federal government has any policy interest in equalizing the federal legal status of all same-sex couples irrespective of their actual marital status. The need to administer federal programs certainly cannot provide it. As the district court aptly noted, “distribut[ing] federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses . . . . does not become more administratively complex simply because some of those couples are of the same sex.” DOJ Pet. App. 68a. Nor is the fact that some samesex married couples might move to other states a reasonable rationale for discriminating against them when they have not done so: federal agencies must

28
often address complicated differences among the domestic relations laws of the states in determining opposite-sex couples’ eligibility for federal benefits,9 including the challenging task of determining the validity of common-law marriages,10 and they routinely apply residency determinations in administering federal programs.11 Any suggestion that federal agencies would be unable to make comparable determinations for married same-sex couples is not believable, and a refusal to undertake the same administrative processing for same-sex couples that the federal government frequently undertakes for opposite-sex couples in similar circumstances is not legitimate. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n.4 (2001) (measure will fail rational basis review where “purported justifications . . . made no sense in light of how the city treated other groups similarly situated in relevant respects”). The First Circuit’s and
9 See, e.g., Social Security Ruling (“SSR”) 84-18: Validity of Marriage - Estoppel – Ohio (applying law of claimant’s state of residence to determine marital status, where law of state where marriage was performed would have yielded contrary result); SSR 63-20 - Validity of Marriage Between First Cousins (same).
10 See, e.g., 5 C.F.R. §§ 831.613(e)(1)(v), 842.605(e)(1)(v), 1651.5(b); 20 C.F.R. §§ 10.415, 219.32, 222.13, 404.726; 28 C.F.R. § 32.3 (definition of “spouse”).
11 See, e.g., 29 C.F.R. § 825.113 (marriage for FMLA purposes turns on law of state in which employee resides); 20 C.F.R. § 404.345 (marriage for Social Security benefit eligibility turns on location of permanent home at time of benefits application); 38 C.F.R. § 3.1(j) (veterans’ benefits); 20 C.F.R. § 222.11 (Railroad Retirement Act).

29
district court’s refusal to entertain this rationale, therefore, again faithfully applies this Court’s precedents.12
D. DOMA Can Be Explained Only By Impermissible Disapproval And Exclusion Of Gay Men And Lesbians.
The First Circuit declined to opine as to Congress’s objective in enacting DOMA, determining that the statute was unconstitutionally irrational without attributing impermissible motives to the Congress who enacted it. However, the lack of any rational explanation for the statute leads to the conclusion that Congress intended DOMA to do exactly what Congress said it intended to do – to reflect “moral disapproval of homosexuality.” H.R. Rep. 104-664 at 15-16, reprinted in 1996 U.S.C.C.A.N. at 2919-20.
This purpose is clear on the face of the House Report. Id. It also pervades the Congressional Record, which was uniquely filled with open hostility to gay men and lesbians (the sheer volume of those statements belying BLAG’s attempt to dismiss them as isolated or incidental). And it is also the only explanation for DOMA that makes any sense because, as discussed supra, none of the other
12 Equally unassailable is the First Circuit’s dismissal of any interest in reacting to a “prospective change in state marriage laws” by temporarily preserving the status quo so that Congress could “reflect.” DOJ. App. at 22a. The court rightly noted the lack of any rational connection between this supposed rationale and the permanent ban on recognition of marriages among same-sex couples effected by DOMA. Id.

30
reasons for the statute, whether stated or invented after-the-fact, is plausible.
This does not mean, as BLAG simplistically characterized Respondents’ position below, that all of DOMA’s supporters harbored animosity towards gay men and lesbians – although, as the Congressional Record shows, quite a few obviously did. As Justices Kennedy and O’Connor noted in Garrett, impermissible prejudice is not limited to “malice or hostile animus alone,” but also includes more subtle, yet still harmful “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
Whether animated by “moral disapproval” toward gay men and lesbians, open hostility, “insensitivity” to the lives of the people against whom they were discriminating, or simply a reaction against people who “appear[ed] to be different,” Congress enacted a statute whose object was to subject gay men and lesbians to different, and less-favorable, treatment. Cf. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 180-81 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”). This Congress may not do. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Moreno, 413 U.S. at 534;

31

Cleburne, 473 U.S. at 448. Similarly, “[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” Lawrence, 539 U.S. at 582 (citing Moreno 413 U.S. at 534; Romer, 517 U.S. at 634-35). Congress’s stated desire to condemn gays and lesbians cannot provide a legally sufficient basis for DOMA.

III. This Court Should Decide Whether

Heightened

Scrutiny

Applies

To

Discrimination On The Basis Of Sexual

Orientation.

As detailed above, the First Circuit correctly held, as have several other lower courts, that DOMA cannot be sustained under rational basis review, and its holding can be affirmed on that basis. If the Court grants review, it should also consider whether heightened scrutiny applies to laws that discriminate based on sexual orientation. As the government argues, DOJ Pet. 16-22, DOMA effects a classification requiring, and failing, heightened scrutiny under the factors this Court has identified
in cases involving other classifications.13

13 Just this week, the court in Pedersen v. Office of Personnel Management, No. 3:10-cv-1750 (D. Conn. July 31, 2012), exhaustively considered whether heightened scrutiny should apply to a classification based on sexual orientation in a challenge to DOMA, including BLAG's contentions to the contrary, and concluded that it should.

32
This Court has been able to resolve past cases involving discrimination against gay men and lesbians without needing to decide the level of scrutiny that applies to such laws. See Lawrence; Romer. In the absence of such guidance from this Court, several lower courts have addressed the question, in many cases concluding that heightened scrutiny is not warranted as a result of Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by, Lawrence v. Texas, 539 U.S. 558 (2003). See, e.g., Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc) (“[I]f the government can criminalize homosexual conduct, a group that is defined by reference to that conduct cannot constitute a ‘suspect class’.”); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990) (“[H]omosexual conduct is not a fundamental right.”) (citing Bowers); see also Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (en banc) (citing cases from several Circuits all decided in 1997 or earlier). While this Court overruled Bowers, Lawrence, 539 U.S. at 578, and the premise underlying these cases is now void, this Court’s silence on the standard of review has allowed many lower courts to continue to apply outdated Circuit precedent that sexual orientation discrimination is subject to only rational basis review, thus leaving gay men and lesbians vulnerable to intentional discrimination. Because DOMA imposes indisputable de jure discrimination on the basis of sexual orientation, this case presents an ideal vehicle for this Court to clarify how courts should scrutinize such laws going forward, and to

33
ensure that lower courts afford gay men and lesbians the constitutional protections to which they are entitled under a proper application of the Equal Protection Clause.14
This Court has made clear that a classification triggers heightened scrutiny where (1) a group has suffered a history of invidious discrimination; and (2) the characteristics that distinguish the group’s members bear no relation to their ability to contribute to society. See Cleburne, 473 U.S. at 44041; United States v. Virginia¸ 518 U.S. 515, 531-32 (1996). While these two factors are essential, this Court has also sometimes considered (3) the group’s minority status or relative lack of political power, see
14 As Respondents will demonstrate if the Court grants review, DOMA also independently warrants heightened scrutiny because it burdens the right of familial integrity for married same-sex couples and their families. The right to maintain family relationships free from undue government interference is a long-established and fundamental liberty interest. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (acknowledging “freedom of personal choice in matters of marriage and family life”); Stanley v. Illinois, 405 U.S. 645, 65152 (1972); Lawrence, 539 U.S. at 574 (confirming that “persons in a homosexual relationship may [also] seek autonomy” for “personal decisions relating to marriage, procreation, . . . . family relationships, child rearing, and education”). DOMA infringes this liberty interest. First, by its sweeping reclassification of Respondents as “single” for any and all federal purposes, DOMA erases their marriages under federal law. Second, by throwing Respondents’ marriages into a confusing legal status in which they “count” for some purposes but not others, DOMA erases much of the meaning their marriages would otherwise have – in both public and private settings – and relegates them to second-class status.

34
Plyler, 457 U.S. at 216 n.14; Lyng v. Castillo, 477 U.S. 635, 638 (1986) (“minority or politically powerless”) (emphasis added), and (4) whether group members have “obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987).
DOJ offers compelling arguments, supported by the undisputed record evidence set forth in the district court, that discrimination based on sexual orientation satisfies these criteria. DOJ Pet. 18-21. The First Circuit, while noting “[s]ome similarity” between sexual orientation and gender discrimination which receives heightened scrutiny, believed itself foreclosed by Circuit precedent from extending heightened scrutiny to sexual orientation. DOJ App. 10a. This Court faces no similar constraint and can and should take that step.
A. The Two Essential Factors (Historical Discrimination And Contribution To Society) Are Easily Satisfied.
There can be no dispute that gay men and lesbians have historically been subject to discrimination. Lawrence, 539 U.S. at 571 (“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral.”). There also can be no legitimate dispute that they participate fully in society. Respondents in this case, and millions of other gay men and lesbians, are woven into the fabric of everyday life in America, leading productive lives as spouses, parents, family members, friends, neighbors, coworkers, and

35
citizens. For these reasons alone, laws that discriminate on the basis of sexual orientation merit heightened scrutiny.
B. Gay Men And Lesbians Are A Minority And Face Significant Obstacles To Winning Political Protections Democratically.
As noted, the Court has sometimes also considered whether a group is a minority or lacks political power.15 Both criteria are satisfied here.
First, there is no dispute that gay men and lesbians are a minority. Second, gay men and lesbians remain politically vulnerable to the majoritarian political process. Below, Respondents submitted unrebutted evidence showing that the modest political successes won by gay men and lesbians (which BLAG highlights while ignoring the extensive contrary evidentiary record developed in this case) do not change the fact that they still lack sufficient political power to end discrimination targeting them. For example, while hate crime legislation has been enacted, and “Don’t Ask, Don’t Tell” has been repealed, basic civil rights for gay men and lesbians have proved impossible to achieve despite decades of effort and despite popular support: there is no national law prohibiting discrimination in employment, housing, or public accommodation on
15 This Court has applied heightened scrutiny absent this factor. See. e.g., Frontiero, 411 U.S. at 686 n.17 (heightened protection for sex-based classifications despite acknowledgment that “women do not constitute a small and powerless minority”).

36
the basis of sexual orientation. See generally Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 452 (Conn. 2008). Gay men and lesbians remain underrepresented in elected office. Id. at 446-47. And legislative and judicial decisions to expand civil rights for gay men and lesbians are disproportionately reversed by ballot initiatives, including marriage in California and foster care rights in Arkansas. Non-discrimination protections are also subject to repeal (e.g., in Anchorage, Alaska in 2012) and many states are attempting to emulate Tennessee’s law forbidding local governments from enacting non-discrimination measures that protect characteristics not enumerated in state antidiscrimination laws. Finally, anti-equality groups are powerful, numerous, and well funded. Id. at 44546.
DOMA itself is emblematic of the limited political power exercised by gay men and lesbians and illustrates the setbacks that typically accompany any gains. After the President and Attorney General of the United States concluded that DOMA was unconstitutional, powerful political interests still rushed to defend it.
In short, gay men and lesbians are ordinarily unable to win political protections through the democratic process, especially on the national level. Contrary to BLAG’s contention, BLAG Pet. 29 n.9, the limited successes achieved so far do not evidence substantial political power, any more than women’s limited political gains obviated the need for heightened scrutiny of gender-based classifications

37

in the 1970s. See Frontiero, 411 U.S. at 687-88 (acknowledging Civil Rights Act prohibiting employment discrimination based on sex, Equal Pay Act, and Congressional passage of Equal Rights Amendment).

C. Sexual Orientation Is An Enduring And Defining Characteristic.

Although not necessary to trigger heightened

scrutiny, see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11

(1977) (resident aliens are suspect class

notwithstanding ability to opt out of class

voluntarily), the Court has also been particularly

suspicious of laws that discriminate based on

“obvious,

immutable,

or

distinguishing

characteristics that define [persons] as a discrete

group.” Bowen, 483 U.S. at 602. This stems from

the “basic concept of our system that legal burdens

should bear some relationship to individual

responsibility.” Frontiero, 411 U.S. at 686 (quotation

marks omitted). A law therefore warrants

heightened scrutiny where it imposes a disability

based on a characteristic that persons cannot, or

should not be asked to, change.

While some would incorrectly characterize the status defining gay men and lesbians as one of behavior only and therefore mutable, this Court has “declined to distinguish between status and conduct in this context.” Christian Legal Society of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010). Moreover, Lawrence recognized that individual decisions by consenting adults concerning the intimacies of their physical relationships represent

38
“an integral part of human freedom,” 539 U.S. at 576-77, and are entitled to constitutional protection, see id. at 578. Given that (1) the purpose of the immutability inquiry is to assess whether a person can reasonably change a characteristic to avoid discrimination, and (2) the acknowledged centrality of sexual orientation to a person’s identity, it would be unjust to ask gay men and lesbians to choose between their identity and the civil rights available to heterosexuals. See, e.g., Kerrigan, 957 A.2d at 438 (this prong of inquiry satisfied where “it would be abhorrent for government to penalize a person for refusing to change” trait) (quotation marks omitted).
Moreover, there is an increasingly broad scientific consensus that sexual orientation is, in fact, immutable, as evidenced by affidavits submitted below. See Kerrigan, 957 A.2d at 436-37; Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in the judgment) (“Scientific proof aside, it seems appropriate to ask whether heterosexuals feel capable of changing their sexual orientation.”).

39 CONCLUSION The Court should grant review and affirm.
Respectfully submitted,

FOLEY HOAG LLP Claire Laporte Ara B. Gershengorn Matthew E. Miller Catherine Deneke 155 Seaport Blvd. Boston, MA 02210 (617) 832-1000
SULLIVAN & WORCESTER LLP David J. Nagle Richard L. Jones One Post Office Square Boston, MA 02109 (617) 338-2800
August 2, 2012

GAY & LESBIAN ADVOCATES & DEFENDERS Gary D. Buseck Mary L. Bonauto* Vickie L. Henry Janson Wu 30 Winter Street, Suite 800 Boston, MA 02108 (617) 426-1350 mbonauto@glad.org
JENNER & BLOCK LLP Paul M. Smith Luke C. Platzer Matthew J. Dunne Melissa A. Cox 1099 New York Ave., NW Suite 900 Washington, DC 20001
*Counsel of Record

 
 Nos. 12-13, 12-15

IN THE
Supreme Court of the United States

BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES,
Petitioner, v.

NANCY GILL, et al.,

Respondents.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Petitioners, v.
COMMONWEALTH OF MASSACHUSETTS, et al., Respondents.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
RESPONSE OF THE COMMONWEALTH OF MASSACHUSETTS IN SUPPORT OF CERTIORARI

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 (212) 937 7294
PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663 6534

QUESTIONS PRESENTED Section 3 of the Defense of Marriage Act (DOMA) defines a “marriage” for all purposes as “only a legal union between one man and one woman as husband and wife.” Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7). It similarly defines a “spouse” as “a person of the opposite sex who is a husband or a wife.” Id. The question presented is: 1. Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. The Commonwealth of Massachusetts also presents the following questions as alternative bases for affirmance of the judgment: 2. Whether Section 3 of DOMA violates the Tenth Amendment. 3. Whether Section 3 of DOMA violates the Spending Clause, U.S. Const. art. I, § 8, cl. 1.
(i)

TABLE OF CONTENTS
Page QUESTIONS PRESENTED ............................................i TABLE OF AUTHORITIES ...........................................v STATEMENT ..................................................................... 1
A. Introduction ........................................................... 1 B. History Of Marriage Laws In The
United States......................................................... 3 C. The Federal Defense Of Marriage Act .............. 3 D. Marriage In The Commonwealth Of
Massachusetts........................................................ 5 1. DOMA’s direct effect on the Com-
monwealth....................................................... 5 2. DOMA’s effect on the Common-
wealth’s operation of veterans’ cemeteries ....................................................... 6 3. DOMA’s effect on Medicaid services in the Commonwealth.......................... 7 E. District Court Proceedings.................................. 9 F. Court Of Appeals Proceedings.......................... 12 REASONS FOR GRANTING THE WRIT................. 15 I. DOMA’S UNCONSTITUTIONALITY IS AN IMPORTANT QUESTION THAT SHOULD BE CONCLUSIVELY SETTLED BY THIS COURT............. 15 II. THE JUDGMENT CAN AND SHOULD BE AFFIRMED ON THE ALTERNATIVE BASES THAT DOMA VIOLATES THE TENTH AMENDMENT AND SPENDING CLAUSE.................... 16
(iii)

iv
TABLE OF CONTENTS—Continued
Page
A. DOMA Violates The Tenth Amendment ...................................................................... 16
B. DOMA Violates The Spending Clause............. 21
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause......................................... 22
2. DOMA also violates the Spending Clause because it bears no relation to the federal spending programs at issue........................................................... 26
CONCLUSION ................................................................. 27

v TABLE OF AUTHORITIES

CASES

Page(s)

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ..................................................................... 22

Baehr v. Lewin, 852 P.2d 44 (Haw. 1993)......................... 3

Bell v. Tug Shrike, 332 F.2d 330 (4th Cir. 1964) ........... 19

Bennett v. Spear, 520 U.S. 154 (1997)............................. 16

Bond v. United States, 131 S. Ct. 2355 (2011) ......... 16, 20

Chicago Title & Trust Co. v. Forty-One ThirtySix Wilcox Building Corp., 302 U.S. 120 (1937) ............................................................................ 18

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) ............................................. 25

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ..................................................... 24

Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009) .................................................. 24, 25

Davis v. Prison Health Services, 679 F.3d 433 (6th Cir. 2012).............................................................. 25

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010) ........... 19

Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).................................. 17

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) .............................................. 5

Gregory v. Ashcroft, 501 U.S. 452 (1991)........................ 20

vi
TABLE OF AUTHORITIES—Continued
Page(s)
Haddock v. Haddock, 201 U.S. 562 (1906) ..................... 18
High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990) ............................................................................. 25
Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ............. 18
Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315 (1935) ....................................... 18
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) ............................................................................. 25
Lofton v. Secretary of Department of Children & Family Services, 358 F.3d 804 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005).................. 25
Lyng v. Castillo, 477 U.S. 635 (1986)........................ 24, 25
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976) ............................................... 24, 25
McCarty v. McCarty, 453 U.S. 210 (1981) ..................... 18
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ............................................................................. 25
National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) ...................... 19, 21
New York v. United States, 505 U.S. 144 (1992)....... 17, 27
Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994) ............................................................ 16
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008)............................................................ 25
Printz v. United States, 521 U.S. 898 (1997) ................. 17

vii
TABLE OF AUTHORITIES—Continued
Page(s)
Romer v. Evans, 517 U.S. 620 (1996).............................. 24
Slessinger v. Secretary of HHS, 835 F.2d 937 (1st Cir. 1987) .............................................................. 19
South Dakota v. Dole, 483 U.S. 203 (1987)............ passim
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)............... 25
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996)............................... 25
Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317 (5th Cir. 1986) .......... 19
United States v. American Library Ass’n, 539 U.S. 194 (2003) ............................................................ 23
United States v. Darby, 312 U.S. 100 (1941)............ 17, 20
United States v. Lopez, 514 U.S. 549 (1995)............. 17, 19
United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973)...................................... 24
Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008).............................................................. 25
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ............................................................................ 25
CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS, AND LEGISLATIVE MATERIALS
U.S. Const. art. I, § 8, cl. 1..................................................... passim amend. V.......................................................... 10, 12, 22 amend. X............................................................. passim amend. XIV ............................................................. 2, 22

viii
TABLE OF AUTHORITIES—Continued
Page(s)
8 U.S.C. § 1186a(b)(1)(A)(i) .............................................. 20
17 U.S.C. § 304(a)(1)(C) ...................................................... 4
26 U.S.C. § 106................................................................................ 4 § 6013.............................................................................. 4
Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(C)............................................................... 4
38 U.S.C. § 2408 ................................................................... 6
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7) ....................................................................... passim
38 C.F.R. pt. 39 ............................................................................... 6 § 39.10(a) ........................................................................ 6
H.R. Rep. No. 104-664 (1996)..................................... 3, 4, 5
Mass. Gen. Laws ch. 118E, § 61......................................... 9
OTHER AUTHORITIES
Federalist No. 45 (Madison)............................................. 17
Gressman, Eugene, et al., Supreme Court Practice (9th ed. 2007) ............................................... 16
Hayes, Christopher J., Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593 (1996) .......................... 19

STATEMENT
A. Introduction
The Commonwealth of Massachusetts, pursuant to its sovereign prerogative and the Massachusetts Declaration of Rights, has issued marriage licenses to samesex couples since 2004. These marriage licenses are indistinguishable from those issued to different-sex couples in all respects but one: they are singled out and rendered invalid for purposes of federal law under DOMA.
DOMA is an unwarranted expansion of federal power that violates the allocation of powers between the federal government and the States. The Commonwealth challenged DOMA on these grounds, which were adopted by the district court but not the court of appeals and which provide independent bases for ruling DOMA unconstitutional. DOMA expands federal power in two important and unjustifiable ways.
First, DOMA is an impermissible federal intrusion into the Commonwealth’s regulation of marriage, which this Court has consistently recognized is a power exclusively reserved to the States. Whereas most States recognize a single marital status that is given effect under federal law, DOMA effectively divides marriage in Massachusetts into two different statuses: married for all purposes for different-sex spouses, and married but “federally single” for same-sex spouses. This federal interference in the State regulation of domestic relations is unprecedented in the Nation’s history and violates the Tenth Amendment.
Second, DOMA forces the Commonwealth, as a condition of its receipt of federal funds in connection with the Commonwealth’s participation in the federal

2
Medicaid program and State Cemetery Grants Program, to engage in unconstitutional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Placing such a condition on the Commonwealth’s receipt of federal funds exceeds Congress’s power under the Spending Clause. DOMA also exceeds Congress’s Spending Clause powers because its disregard of lawful marriages bears no relationship to the purposes of the federal programs it affects, including Medicaid and the State Cemetery Grants Program.
The Commonwealth agrees with the court of appeals’ judgment, which correctly affirmed both the district court’s ruling that DOMA is unconstitutional and its injunction forbidding enforcement of DOMA in Massachusetts. However, the Commonwealth recognizes that DOMA’s unconstitutionality is a question of national significance and is likely to be addressed by this Court at some point. The Commonwealth believes that it is important that the Court address the matter in a case that presents the full complement of DOMA’s constitutional infirmities, including the Tenth Amendment and Spending Clause issues that are best raised by a State and, to date, have only been raised in this litigation. Accordingly, the Commonwealth agrees that certiorari should be granted in this case.1
1 The Commonwealth takes no position on whether BLAG has independent standing to petition for certiorari in this case. Sufficient review is assured by granting the United States’ petition and permitting BLAG to urge reversal. See U.S. Pet. (No. 12-15) at 12 n.3. Out of an abundance of caution, the Commonwealth is also filing a conditional cross-petition for a writ of certiorari raising its Tenth Amendment and Spending Clause arguments, in the event the Court determines that such a cross-petition is required in or-

3
B. History Of Marriage Laws In The United States
Since the Founding, the States have exclusively controlled the terms for entry into and exit from marriage. Pet. App. 89a-90a.2 State marriage rules have varied substantially, including “‘nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.’” Id. 86a. Several variations among State marriage laws were the subject of serious controversy, including restrictions regarding consanguinity, hygiene, age, and most notably race. Id. 87a. Nevertheless, the federal government has consistently given effect under federal law to States’ marital status determinations. Id. That changed with DOMA’s enactment in 1996.
C. The Federal Defense Of Marriage Act
Congress enacted DOMA out of fear that, following Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), Hawaii would recognize marriages between same-sex couples. See H.R. Rep. No. 104-664, at 2 (1996) (House Report) (“The prospect of permitting homosexual couples to ‘marry’ in Hawaii threatens to have very real consequences both on federal law and on the laws (especially the marriage laws) of the various States.”).
der for this Court to reach those issues. See Conditional CrossPetition for a Writ of Certiorari (filed July 20, 2012).
2 References to “Pet. App.” are to the appendix to the United States’ petition in No. 12-15. References to “BLAG Pet. App.” are to the appendix to BLAG’s petition in No. 12-13.

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When Congress enacted DOMA, however, no State in fact permitted same-sex couples to marry. House Report 3. Some voices in Congress warned that a federal definition of marriage would interfere with the States’ ability to define and regulate marriage:
Section three of the bill … represents for the first time in our history a Congressional effort, if successful, to deny states full discretion over their own marriage laws … [D]enying a marriage federal recognition substantially diminishes its legal force …. Thus, the bill is exactly the opposite of a states rights measure: the only real force it will have will be to deny a state and the people of that state the right to make decisions on the question of same sex marriage.
House Report 42 (dissenting views).
DOMA sweeps broadly across all federal laws, affecting all federal rights and responsibilities, however significant or minute, that involve marital status. For example, DOMA releases employers from the obligation of offering unpaid leave to care for an ailing samesex spouse under the Family and Medical Leave Act, 29 U.S.C. § 2612(a)(1)(C); prevents same-sex spouses from filing joint federal income tax returns, often at substantial expense, 26 U.S.C. § 6013; requires a same-sex spouse receiving health benefits through his or her spouse to pay federal income tax on those benefits where a different-sex spouse’s identical benefits are excluded from taxable income, id. § 106; and prevents a surviving same-sex spouse from renewing and extending the term of his or her spouse’s copyright, 17 U.S.C. § 304(a)(1)(C). Notwithstanding this broad scope, Congress declined to consider how DOMA’s new federal

5
definition of marriage would affect the citizens affected by these and myriad other federal laws.3
D. Marriage In The Commonwealth Of Massachusetts
Since 2004, the Commonwealth has permitted all qualified couples, whether same-sex or different-sex, to marry. Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003); Pet. App. 90a. As the first State to achieve marriage equality, the Commonwealth has also been the first State to test Congress’s premise that DOMA would not interfere with a State’s ability to define and regulate marriage. The Commonwealth’s experience demonstrates the opposite and illustrates DOMA’s “serious adverse consequences … for states that choose to legalize same-sex marriage.” Pet. App. 4a.
1. DOMA’s direct effect on the Commonwealth
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples—marriages that, as a result of DOMA, are not recognized under federal law. Pet. App. 90a. In addition to invading powers reserved to the Commonwealth by the Constitution, DOMA’s non-recognition of these
3 See House Report 42 (dissenting views) (“That this bill’s consequences are not adequately analyzed was conceded by [its supporters who] argued that we must deny recognition to same sex marriages declared by states to be legal because we do not know what the implications of this will be for various federal programs.”); see also Pet. App. 18a (“[N]one of the testimony [at congressional hearings] concerned DOMA’s effects on the numerous federal programs at issue.”).

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marriages imposes significant additional costs on the Commonwealth. For example, because health benefits for same-sex spouses of Commonwealth employees are considered taxable income for federal tax purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to these spouses. Pet. App. 100a. In addition, to comply with DOMA, the Commonwealth has incurred other costs to create and implement systems to identify employees who provide healthcare coverage to their same-sex spouses. Id. 101a.
2. DOMA’s effect on the Commonwealth’s operation of veterans’ cemeteries
The Commonwealth receives funding through the federal State Cemetery Grants Program for two veterans’ cemeteries located on Commonwealth-owned land in Agawam and Winchendon, Massachusetts. This program provides federal funding for the establishment, expansion, and improvement of veterans’ cemeteries owned and operated by a State. 38 U.S.C. § 2408; 38 C.F.R. pt. 39. The Commonwealth received over $19 million in federal funds to construct and expand these cemeteries and has also received nearly $1.5 million in federal funds to cover costs associated with burying veterans in these cemeteries. Pet. App. 91a-92a.
A condition on the Commonwealth’s receipt of these funds is that the cemeteries must “‘be operated solely for the interment of veterans, their spouses, surviving spouses, and [certain of their] children.’” Pet. App. 93a (quoting 38 C.F.R. § 39.10(a)) (emphasis added). Failure to comply with this condition could result in the cemetery no longer qualifying as a veterans’ cemetery, which would allow the United States to re-

7
capture all of the funds it has provided to the Commonwealth for that cemetery. Id. 93a.
In 2004, in response to the Commonwealth’s inquiry, the United States Department of Veterans Affairs informed the Commonwealth that, should it elect to bury the same-sex spouse of a veteran in one of its two veterans’ cemeteries, that cemetery would not comply with federal law, and the United States could recapture all of the federal funding provided in connection with that cemetery. Pet. App. 93a-94a.
In 2007, the Commonwealth approved an application for burial in the Winchendon cemetery submitted by a decorated United States Army veteran and his same-sex spouse. Pet. App. 118a-119a. The Commonwealth intends to honor their wish to be buried together in a veterans’ cemetery. The United States conceded below that, as a result of that decision, the Commonwealth is subject to the threat of recapture of federal funds.
3. DOMA’s effect on Medicaid services in the Commonwealth
The federal Medicaid program, enacted in 1965 as Title XIX of the Social Security Act, is a federal-State partnership designed to offer subsidized medical services to certain qualifying low-income individuals. Under Medicaid, the federal government provides funds to States to operate the program, so long as the States comply with the Medicaid statute and regulations. The Commonwealth’s Medicaid program, known as MassHealth, receives billions of dollars annually in federal reimbursement for the benefits it pays out under this program. Pet. App. 95a-96a.

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An individual’s marital status is often relevant to eligibility for Medicaid (and therefore MassHealth) benefits because spousal income and assets are typically combined to determine whether an applicant meets an eligibility threshold. A person who would be eligible for benefits if considered as single might be ineligible when assessed as part of a married couple, and vice versa. Because DOMA requires MassHealth to ignore same-sex marriages for purposes of Medicaid, in some instances it requires the Commonwealth to extend coverage to individuals who would not qualify if their marriages were recognized. In other instances, DOMA forces the Commonwealth to deny to same-sex spouses the coverage that it extends to identicallysituated different-sex spouses. Pet. App. 96a.4
In 2008, the Commonwealth enacted the MassHealth Equality Act, which provides that, in administering MassHealth, “no person who is recognized as a spouse under the laws of the commonwealth shall be
4 For example, the incomes of a different-sex married couple with one spouse earning $65,000 and the other $13,000 are combined to determine MassHealth eligibility. The couple’s combined income ($78,000) is too high for either spouse to be eligible for MassHealth. But if the spouses are of the same sex and the marriage is disregarded under DOMA, the spouse earning $13,000 would be eligible for MassHealth benefits. Conversely, in a household consisting of two different-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year, the couple’s combined income ($40,000) falls below the $43,716 minimum threshold for couples and both spouses are eligible for healthcare under MassHealth. If the spouses are of the same sex and the marriage is disregarded under DOMA, only the spouse earning $7,000 per year would be eligible for Medicaid coverage, because only that spouse’s income falls below the federal minimum for individuals. Pet. App. 97a-98a.

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denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal non-recognition of spouses of the same sex.” Mass. Gen. Laws ch. 118E, § 61. As required by the MassHealth Equality Act, the Commonwealth accordingly follows its definition of marriage, not DOMA’s, in determining eligibility for MassHealth, including denying coverage to individuals who would be eligible for coverage if they were considered as a single person. The United States has informed the Commonwealth that DOMA “‘preclude[s] recognition of same-sex couples as ‘spouses’ in the Federal program’” and warned the Commonwealth that it “‘must pay the full cost, including the cost of administration of a program that does not comply with Federal law.’” Pet. App. 99a. As with the veterans’ cemeteries program, the United States conceded below that the Commonwealth is subject to the threat of recapture of these federal funds.
E. District Court Proceedings
The Commonwealth, by and through its Attorney General, filed a declaratory judgment action challenging the application of DOMA in Massachusetts under the Spending Clause and the Tenth Amendment. With regard to the Tenth Amendment, the Commonwealth claimed that DOMA invades the reserved powers of the States, thereby exceeding Congress’s power and violating the Tenth Amendment. With regard to the Spending Clause, the Commonwealth claimed that DOMA violated the Spending Clause by requiring it to violate the Equal Protection Clause as a condition of receiving and retaining federal funding for its Medicaid program and veterans’ cemeteries. Pet. App. 109a. The Commonwealth also argued that DOMA fails the “relatedness” (or germaneness) limitation on the Spending

10
Clause articulated in South Dakota v. Dole, 483 U.S. 203 (1987), because DOMA’s disregard of same-sex marriages bears no relationship to the purposes of the Medicaid and veterans’ cemetery programs. Pet. App. 110a-111a.
The United States moved to dismiss. The Commonwealth cross-moved for summary judgment, adducing detailed evidence demonstrating, inter alia, that State determinations of marital status have traditionally governed not only under State law, but also under federal law. Pet. App. 113a (district court decision relying on the Commonwealth’s “extensive affidavit on the history of marital regulation”). For example, the evidence showed that “the federal government consistently relied on state determinations with regard to marriage” even when “a great deal of tension surrounded the issue of interracial marriage.” Id. 87a, 90a. The Commonwealth also provided evidence that sexual orientation satisfies the factual predicates for the application of heightened scrutiny under this Court’s precedent. Dist. Ct. Dkt. Nos. 36, 37, 38. The United States did not contest this or any other of the Commonwealth’s evidence, nor did it offer any evidence of its own.
In a parallel case, Gill v. Office of Personnel Management, a group of individuals who are or had been lawfully married in Massachusetts to someone of the same sex sued for certain federal benefits that had been denied them through operation of DOMA, asserting that the denial violated their equal protection rights under the Fifth Amendment. The cases were not formally consolidated in the district court, but they were heard by the same district judge and were decided on the same day.

11
The district court denied the United States’ motion to dismiss and granted summary judgment to the Commonwealth and the Gill plaintiffs. In Gill, the court concluded that DOMA violates the equal protection component of the Due Process Clause because no conceivable rational basis for DOMA exists. Pet. App. 70a-71a. In its separate opinion in the Commonwealth’s case, the district court concluded that DOMA violates the Spending Clause by imposing an unconstitutional condition on the Commonwealth’s receipt of federal funds. As the court explained, “DOMA induces the Commonwealth to violate the equal protection rights of its citizens” and thereby “imposes an unconstitutional condition on the receipt of federal funding,” in contravention of “a well-established restriction on the exercise of Congress’ spending power.” Id. 110a. The district court also acknowledged the pressure to comply with DOMA that results from the fact that substantial federal funds are conditioned on that compliance. See, e.g., id. 103a (“[T]he federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran [in one of its veterans’ cemeteries].”). The district court did not reach the Commonwealth’s alternative argument that DOMA violates the Spending Clause by imposing a condition that is not germane to the federal spending programs at issue. Id. 110a-111a.
With regard to the Tenth Amendment, the district court found that, by enacting DOMA, “Congress has intruded on the exclusive province of the state to regulate marriage.” Pet. App. 105a. The district court observed that marital status definitions have always been “a core area of state sovereignty” (id. 111a), and family law generally “is often held out as the archetypal area

12
of local concern” (id. 113a). Indeed, the court noted that marital status determinations have been the sole province of the States since before the Founding, which has resulted in an evolving “checkerboard of rules and restrictions on the subject.” Id. 114a. The district court concluded Congress may not “siphon off a portion of that traditionally state-held authority for itself” without running afoul of the Tenth Amendment. Id. 104a. Accordingly, the district court held that DOMA encroaches upon the Commonwealth’s sovereign authority “to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status.” Id. 120a.
The district court entered a judgment that “[DOMA] is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.” Pet. App. 124a.
F. Court Of Appeals Proceedings
The United States appealed. At the United States’ request, the court of appeals consolidated the Gill case with the Commonwealth’s case. The United States filed an opening brief in the consolidated cases defending DOMA’s constitutionality under the Fifth Amendment’s equal protection component, the Tenth Amendment, and the Spending Clause. Before the Commonwealth and the Gill plaintiffs filed their responsive briefs, the United States informed the court of appeals that the President and Attorney General had concluded that equal protection challenges to classifications based on sexual orientation should be evaluated under heightened scrutiny, that Section 3 of DOMA could not survive that level of scrutiny, and that the United

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States would therefore cease its defense on equal protection grounds of the constitutionality of Section 3. Pet. App. 6a. BLAG then sought and was granted leave to intervene as an appellant in the consolidated cases in order to defend DOMA against the equal protection challenge.5
The United States then filed a superseding brief, asserting that DOMA should be evaluated under a heightened equal protection standard, which the United States agreed DOMA could not satisfy. The United States’ superseding brief also agreed that, because DOMA violates equal protection, it necessarily violates the Spending Clause by imposing an unconstitutional condition on the Commonwealth’s receipt of federal funds. However, the United States continued to argue that DOMA violates neither the Tenth Amendment nor the Spending Clause’s germaneness requirement.
BLAG filed a brief defending DOMA on equal protection grounds and did not address the district court’s ruling that DOMA violates the Tenth Amendment and Spending Clause.
The court of appeals affirmed the district court’s judgment. BLAG Pet. App. 30a-31a. In its opinion in the consolidated cases, the court of appeals acknowledged that DOMA “burden[s] the choice of states like Massachusetts to regulate the rules and incidents of
5 After BLAG was permitted to intervene, the Gill plaintiffs moved for initial hearing en banc, and the United States later joined in the request. The Commonwealth and BLAG neither supported nor opposed the request. The court of appeals denied initial hearing en banc by an equally divided vote.

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marriage” and carries “potentially serious adverse consequences” for States that have legalized same-sex marriage. Pet. App. 4a, 16a.
With regard to the Tenth Amendment, the court of appeals acknowledged the district court’s finding that, before DOMA’s enactment, marital status determinations were the sole province of the States. Pet. App. 15a. However, the court of appeals stated that DOMA did not run afoul of the Tenth Amendment because it did not “directly dictate the internal operations of state government.” Id. 16a.
The court of appeals also found that DOMA did not violate the Spending Clause because it did not “run afoul of the ‘germaneness’ requirement.” Pet. App. 16a. The court did not address the Commonwealth’s primary Spending Clause argument: that by conditioning federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth disregard lawful same-sex marriages, DOMA makes federal funds turn on a violation of equal protection and, accordingly, runs afoul of the rule that Congress cannot condition federal funds on a State’s violation of an independent constitutional requirement. Dole, 483 U.S. at 206.
Although the court of appeals declined to rule that DOMA violates the Tenth Amendment, the “federalism concerns” underlying the Commonwealth’s Tenth Amendment arguments were integral to the court’s holding that DOMA violates the guarantee of equal protection. The court noted that “DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation— domestic relations and the definition and incidents of lawful marriage” (Pet. App. 11a) and explained that “in

15
areas where state regulation has traditionally governed, the [Supreme] Court may require that the federal government interest in intervention be shown with special clarity” (id. 15a).
The court of appeals’ judgment in the consolidated cases states: “The judgment of the district court is affirmed. The mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.” BLAG Pet. App. 30a-31a.
REASONS FOR GRANTING THE WRIT
I. DOMA’S UNCONSTITUTIONALITY IS AN IMPORTANT QUESTION THAT SHOULD BE CONCLUSIVELY SETTLED BY THIS COURT
The Commonwealth agrees with the court of appeals’ judgment that Section 3 of DOMA is unconstitutional and normally would oppose further review in order to ensure that the judgment takes effect as soon as possible. However, the Commonwealth recognizes that the question is one of national importance and that this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or nonenforcement of DOMA throughout the country. On that assumption, the Commonwealth believes that the Court should conduct that review in the context of a case that presents the full range of constitutional challenges to DOMA, including challenges under the Tenth Amendment and Spending Clause that are best presented by a State. The Commonwealth accordingly agrees that the Court should grant review in this case and affirm the judgment of the court of appeals.

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II. THE JUDGMENT CAN AND SHOULD BE AFFIRMED ON THE ALTERNATIVE BASES THAT DOMA VIOLATES THE TENTH AMENDMENT AND SPENDING CLAUSE
In its review of the court of appeals’ judgment, this Court can and should consider holding DOMA unconstitutional based on the additional, alternative grounds that DOMA violates the Tenth Amendment and the Spending Clause. Although the court of appeals rejected these arguments in the decision below (Pet. App. 16a-17a), the Commonwealth can “defend the judgment on any ground supported by the record.” Bennett v. Spear, 520 U.S. 154, 166 (1997); see also Gressman et al., Supreme Court Practice § 6.35 (9th ed. 2007).6
A. DOMA Violates The Tenth Amendment
The court of appeals properly recognized the substantial impairment of State sovereignty wrought by DOMA. Pet. App. 15a; see Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (“The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.”). The court stopped short, however, of finding that DOMA violates the Tenth Amendment based on the mistaken rationale that a Tenth Amendment violation occurs “only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government.” Pet. App. 16a. The court of ap-
6 As stated in note 1 above, the Commonwealth is also filing a conditional cross-petition in the event the Court views these arguments as potentially expanding the court of appeals’ judgment. See Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364 (1994) (cross-petition unnecessary “so long as [the prevailing] party seeks to preserve, and not to change, the judgment”).

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peals’ narrow reading of the Tenth Amendment is inconsistent with this Court’s jurisprudence.
The Tenth Amendment provides that Congress is not authorized to enact legislation in areas reserved to the States. U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).7 This Court has in recent decisions confirmed that the Tenth Amendment serves as a substantive check on Congress’s exercise of legislative power, repeatedly addressing the proper balance of authority between federal and State government. See, e.g., Printz v. United States, 521 U.S. 898, 920-921 (1997); see also United States v. Lopez, 514 U.S. 549, 589 (1995) (Thomas, J., concurring) (expressing concern that broad “construction[s] of the scope of congressional authority … com[e] close to turning the Tenth Amendment on its head”). The Tenth Amendment is violated when Congress purports to regulate a
7 See, e.g., United States v. Darby, 312 U.S. 100, 124 (1941) (purpose of Tenth Amendment was “to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers”); see also New York v. United States, 505 U.S. 144, 156 (1992) (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“States remain sovereign as to all powers not vested in Congress or denied them by the Constitution[.]”); Federalist No. 45 (Madison) (“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”).

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“domain of activity set apart by the Constitution as the province of the states.” Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315, 338 (1935) (Cardozo, J.).
As the court of appeals properly recognized, domestic relations constitute one such domain. Pet. App. 15a (“DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad policepower authority over morality and culture.”). This Court has also repeatedly recognized that “‘[t]he whole subject of the domestic relations of husband and wife … belongs to the laws of the States and not to the laws of the United States.’” McCarty v. McCarty, 453 U.S. 210, 220 (1981) (quoting Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979)); see also Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce …. [T]he Constitution delegated no authority to the Government of the United States on th[at] subject.”).
The uncontroverted record in the district court established that the States’ exclusive authority over domestic relations and marital status has never been limited to defining its contours for purposes of State law. Cf. Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp., 302 U.S. 120, 127-129 (1937) (State has exclusive authority over corporate status of Statechartered corporation for both State and federal purposes). Rather, State marital determinations have controlled for purposes of both State law and federal law to the extent Congress chooses to predicate federal law on marital status. Indeed, prior to DOMA, Congress had never refused to recognize a State determination of

19
marital status. Pet. App. 60a-61a n.126; see also id. 15a (“Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime.”); National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2586 (2012) (opinion of Roberts, C.J.) (“[S]ometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s action. At the very least, we should ‘pause to consider the implications’ … when confronted with such new conceptions of federal power.” (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010), and Lopez, 514 U.S. at 564 (first three alterations in original))).8
By imposing a federal definition of marriage, DOMA impermissibly creates two marital statuses among Massachusetts citizens. While different-sex married couples remain married for all purposes, same-
8 See Hayes, Note, Married Filing Jointly: Federal Recognition of Same-Sex Marriages Under the Internal Revenue Code, 47 Hastings L.J. 1593, 1602-1603 (1996); see also, e.g., Slessinger v. Secretary of HHS, 835 F.2d 937, 939 (1st Cir. 1987) (rejecting application of federal common law rule to eligibility determination under Social Security Act and instead deferring to State rule: “This conclusion is strongly reinforced by the settled principle that matters of divorce and marital status are uniquely of state, not federal concern. It would do violence to this principle for a court to apply federal law under the Act to give effect to a foreign divorce decree that would not be honored in the state of domicile.” (citations omitted)); Tidewater Marine Towing, Inc. v. CurranHouston, Inc., 785 F.2d 1317, 1318-1320 (5th Cir. 1986) (rejecting application of federal common law rule in eligibility determination under federal maritime law: “We are aware of few instances in which state interests are accorded more deference by federal courts than in defining familial status.”); Bell v. Tug Shrike, 332 F.2d 330, 334-336 (4th Cir. 1964) (same).

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sex couples are married under State law, but federally single. The impact of DOMA’s rule of exclusion is substantial, affecting many aspects of these citizens’ lives, from healthcare to employment to taxes. This imposition of two different types of marriage within Massachusetts precludes the Commonwealth from “exercis[ing] fully [its] reserved powers.” United States v. Darby, 312 U.S. 100, 124 (1941).
DOMA is therefore a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation, supplanting States’ settled, uninterrupted authority to define marital status for all purposes. Because the Tenth Amendment “reserve[s]” the regulation of marriage to “the States,” DOMA’s federal definition of marriage exceeds the limited powers conferred on the federal government by the Constitution. See Bond, 131 S. Ct. at 2366 (“Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.” (citation omitted)); see also Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (“States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.”).9
9 As the court of appeals correctly acknowledged, this is not to say that Congress has no interest in “who counts as married,” but rather that this interest can be satisfied by Congress’s legislation “in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i),” where Congress has added requirements beyond marriage. Pet. App. 15a. Moreover, every marriage can at least potentially satisfy such additional federal criteria. DOMA’s omnibus approach, effectively nullifying a

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This Court should grant certiorari to clarify that Congress intrudes into a realm reserved to the States when it legislates in an area of traditional State concern such as defining marriage and to correct the court of appeals’ unduly restrictive application of the Tenth Amendment.
B. DOMA Violates The Spending Clause
Congress’s power under the Spending Clause (U.S. Const. art. I, § 8, cl. 1) includes the ability to condition States’ receipt of federal funds upon compliance with federal directives. While this power is broad, it is not unfettered, and is circumscribed by the limitations articulated in South Dakota v. Dole, 483 U.S. 203 (1987). A valid exercise of the spending power must be (1) “in pursuit of the general welfare”; (2) unambiguous; (3) related to “‘the federal interest’” in furtherance of which the spending power is being exercised; (4) not independently barred by other constitutional provisions; and (5) not “so coercive as to pass the point at which pressure turns into compulsion.” Id. at 207-208, 211 (internal quotation marks omitted); see also National Fed’n of Indep. Bus., 132 S. Ct. at 2601-2603 (opinion of Roberts, C.J.); id. at 2659 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) (“our cases have long held that the power to attach conditions to grants to the States [under the Spending Clause] has limits”).
The Commonwealth argued below that DOMA runs afoul of two of these restrictions. First, it conditions federal funds on the Commonwealth’s violation of another constitutional provision, namely the Equal Pro-
large category of marriages for all federal purposes, contrasts starkly with these narrow, program-specific statutory criteria.

22
tection Clause of the Fourteenth Amendment.10 Second, DOMA fails the “relatedness” (or germaneness) requirement articulated by Dole because its disregard of State marriage determinations bears no relationship to the federal statutes and regulations that it affects— notably here, Medicaid and the State Cemetery Grants Program. Both grounds provide independent bases for invalidating DOMA.
1. DOMA violates the Spending Clause because it conditions receipt of federal funds on the Commonwealth’s violation of the Equal Protection Clause
By conditioning the Commonwealth’s receipt of federal funds under Medicaid and the State Cemetery Grants Program on a requirement that the Commonwealth differentiate between same-sex and differentsex married couples, DOMA forces the Commonwealth to violate the Equal Protection Clause and, accordingly, exceeds Congress’s power under the Spending Clause.
This Court clearly ruled in Dole that “a grant of federal funds conditioned on invidiously discriminatory state action … would be an illegitimate exercise of Congress’ broad spending power.” 483 U.S. at 210-211; see
10 As the lower courts, the United States, and BLAG all agree, this Court’s approach “to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) (internal quotation marks omitted). Thus, if DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment when enforced by the federal government, it also violates the Equal Protection Clause of the Fourteenth Amendment when enforced by a State.

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also United States v. American Library Ass’n, 539 U.S. 194, 203 (2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. But Congress may not ‘induce’ the recipient ‘to engage in activities that would themselves be unconstitutional.’” (citation omitted; quoting Dole, 483 U.S. at 210)).
A ruling that DOMA violates equal protection thus compels a finding that DOMA also violates the Spending Clause. In the context of the State Cemetery Grants Program, DOMA requires the Commonwealth to treat the same-sex spouse of a veteran who wishes to be buried with his or her same-sex spouse in a cemetery funded under the program differently from how it treats a similarly-situated different-sex spouse. Likewise, DOMA forces the Commonwealth to differentiate between individuals in same-sex marriages and similarly-situated individuals in different-sex marriages in its administration of Medicaid.
The court of appeals did not discuss this aspect of the Commonwealth’s Spending Clause argument. But the court’s statement that DOMA does not violate the Spending Clause (Pet. App. 16a-17a) cannot be reconciled with its finding that DOMA violates equal protection. Indeed, neither the United States nor BLAG has ever disputed that if DOMA violates equal protection, it must also violate the Spending Clause.
The Commonwealth and the Gill Respondents offered the lower courts several means by which an equal protection violation could be found. First, Respondents demonstrated that no rational basis plausibly supported DOMA’s blanket non-recognition of marriages lawfully contracted under State law, whether one considered the actual interests invoked by Congress at the

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time or the post hoc justifications now marshaled by BLAG in this litigation.
Second, the legislative record demonstrates that DOMA’s underlying (and in some cases expressly stated) purpose was impermissible animus towards gays and lesbians, a factor that this Court has suggested justifies particularly exacting scrutiny. Romer v. Evans, 517 U.S. 620, 635 (1996) (invalidating provision that was nothing more than a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests”); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (law enacted based on “mere negative attitudes, or fear” invalid); United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, (1973) (law invalid because it was motivated by a “bare congressional desire to harm a politically unpopular group”).
Third, the Commonwealth, like the United States and the Gill Respondents, asserted that DOMA’s classification based on sexual orientation should be subject to heightened scrutiny, a proposition the court of appeals panel believed was off-limits to it due to prior circuit precedent in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied sub nom. Pietrangelo v. Gates, 129 S. Ct. 2763 (2009). Pet. App. 10a. This Court is not so constrained, however. Under this Court’s jurisprudence, a classification is subject to heightened scrutiny if (1) the targeted class has suffered a history of discrimination, and (2) the characteristics that distinguish the group are unrelated to their ability to contribute to society. See Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-314 (1976) (per curiam)). In determining the applicability of heightened scrutiny, the Court at times has also considered (3) whether members of the

25
class exhibit immutable distinguishing characteristics, and (4) whether the class is a minority or evidences political powerlessness requiring protection from the majoritarian political process. Murgia, 427 U.S. at 313314. As the uncontroverted record below demonstrated, gays and lesbians meet each of these requirements. See supra p.11.11
The court of appeals’ opinion offered yet a fourth route, viewing the weaknesses of the justifications offered for DOMA in light of the Commonwealth’s federalism arguments and the unprecedented nature of DOMA’s interference in State regulation of marital status. This overextension of congressional power, the court ruled, warranted a more robust review under
11 Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multifactor analysis that Lyng requires. Neither Cook nor most of the other cases cited by BLAG for the proposition that heightened scrutiny should not apply to classifications based on sexual orientation discusses the heightened scrutiny factors in any substantial way. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Witt v. Department of Air Force, 527 F.3d 806, 821 (9th Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-1114 & n.9 (10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-867 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Secretary of Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005); Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996). Many such cases, including Cook, involved military policies, which are given special judicial deference. See Thomasson v. Perry, 80 F.3d 915, 927-928 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 684-685 (D.C. Cir. 1994) (en banc); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 577 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Cook, 528 F.3d at 57-58.

26
equal protection principles—a review DOMA could not survive.
Any of these routes leads to the same conclusion: DOMA’s discrimination on the basis of sexual orientation is unconstitutional, and by requiring Massachusetts to carry out such discrimination against its own citizens as a condition of receiving and retaining federal funds, DOMA violates the Spending Clause.
2. DOMA also violates the Spending Clause because it bears no relation to the federal spending programs at issue
DOMA separately violates the Spending Clause’s requirement that federal funds not be limited by conditions “unrelated to the federal interest in [the affected] national projects or programs.” Dole, 483 U.S. at 207 (internal quotation marks omitted). The court of appeals believed that this requirement was “not implicated” because DOMA “merely defines the terms of the federal benefit.” Pet. App. 16a. If that were true, however, Dole’s germaneness requirement would be a dead letter, because any irrelevant condition may be cast as a limit on “the terms of the federal benefit.” In Dole, the germaneness requirement was met because the goal of the federal highway funds at issue was to ensure safe interstate highway travel. That goal was promoted by the condition that States adopt a uniform minimum drinking age: “the lack of uniformity in the States’ drinking ages created an incentive to drink and drive because young persons commut[e] to border States where the drinking age is lower.” 483 U.S. at 209 (internal quotation marks omitted).
Here, unlike in Dole, neither the United States nor the court of appeals has ever provided a plausible explanation of how the purposes of the programs affected

27
by DOMA are served by refusing to recognize marriages lawfully contracted under Massachusetts law. Medicaid is designed to provide subsidized medical care to needy individuals, yet DOMA compels the Commonwealth to provide and pay for coverage of individuals in high-income families because their potentially disqualifying marriages cannot be recognized for purposes of federal Medicaid eligibility. And no colorable argument can be made that DOMA’s prohibition on burying a decorated veteran with his husband is “related” to a program that exists for the purpose of burying veterans with their loved ones.
DOMA’s disregard of lawful marriages is not “reasonably related to the purpose[s]” of these programs. New York v. United States, 505 U.S. 144, 172 (1992) If anything, it is directly at odds with them. Accordingly, as a limitation on the receipt of federal funds, it cannot pass even the most lenient test for “relatedness,” and this Court should correct the court of appeals’ erroneous ruling to the contrary.
CONCLUSION
The Court should grant certiorari and affirm the judgment of the court of appeals.

Respectfully submitted.

MARK C. FLEMING FELICIA H. ELLSWORTH BRIAN J. BOYLE JR. MARGARET E. O’GRADY WILMER CUTLER PICKERING
HALE AND DORR LLP 60 State Street Boston, MA 02109
ALAN E. SCHOENFELD WILMER CUTLER PICKERING
HALE AND DORR LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007

MARTHA COAKLEY ATTORNEY GENERAL
MAURA T. HEALEY Counsel of Record
JONATHAN B. MILLER JOSHUA D. JACOBSON CHRISTOPHER K. BARRY-SMITH ASSISTANT ATTORNEYS GENERAL One Ashburton Place Boston, MA 02108 (617) 727-2200 Maura.Healey@state.ma.us

PAUL R.Q. WOLFSON WILMER CUTLER PICKERING
HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006

JULY 2012

 
 No.
In the Supreme Court of the United States
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DONALD B. VERRILLI, JR. Solicitor General Counsel of Record
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

QUESTION PRESENTED
Section 3 of the Defense of Marriage Act (DOMA) defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:
Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.
(I)

PARTIES TO THE PROCEEDING
Petitioners are the United States Department of Health and Human Services; Kathleen Sebelius, Secretary of Health and Human Services; the United States Department of Veterans Affairs; Eric K. Shinseki, Secretary of Veterans Affairs; the Office of Personnel Management; the United States Postal Service; Patrick R. Donahoe, Postmaster General of the United States of America; Michael J. Astrue, Commissioner of Social Security; Eric H. Holder, Jr., Attorney General; and the United States of America.
Respondents who were plaintiffs below are the Commonwealth of Massachusetts, Nancy Gill, Marcelle Letourneau, Martin Koski, James Fitzgerald, Dean Hara, Mary Ritchie, Kathleen Bush, Melba Abreu, Beatrice Hernandez, Marlin Nabors, Jonathan Knight, Mary Bowe-Shulman, Dorene Bowe-Shulman, Jo Ann Whitehead, Bette Jo Green, Randell Lewis-Kendell, and Herbert Burtis.
The Bipartisan Legal Advisory Group of the United States House of Representatives intervened in the court of appeals to present arguments in defense of the constitutionality of Section 3 of DOMA.
(II)

TABLE OF CONTENTS
Page
Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Constitutional and statutory provisions involved . . . . . . . . . . . 2 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Reasons for granting the petition . . . . . . . . . . . . . . . . . . . . . . . 11
A. This Court’s review is warranted because the court of appeals invalidated an Act of Congress . . . . . 13
B. The decision below raises important questions of federal law that should be settled by this Court . . . . . 14
C. Authoritative resolution of the question presented is of great public importance . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Appendix A – Opinion of the court of appeals
(May 31, 2012) . . . . . . . . . . . . . . . . . . . . . . . 1a Appendix B – Opinion of the district court, Gill v.
Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 29a Appendix C – Order of the district court, Gill v. Office of Personnel Management (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 73a Appendix D – Amended judgment of the district court, Gill v. Office of Personnel Management (Aug. 17, 2010) . . . . . . . . . . . . . . . . . . . . . . 75a Appendix E – Opinion of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . . . . . . . . . . . . . . . . . 82a Appendix F – Order of the district court, Massachusetts v. United States Department of Health & Human Services (July 8, 2010) . . . . . . . 121a Appendix G – Judgment of the district court, Massachusetts v. United States Department of Health & Human Services (Aug. 12, 2010) . . . . 123a
(III)

IV

Table of Contents—Continued:

Page

Appendix H – Constitutional and statutory provisions . . . . . . . . . . . . . . . . . . . . . . . . . 125a

Cases:

TABLE OF AUTHORITIES

Armour v. City of Indianapolis, 132 S. Ct. 2073 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . . . . . . . . 14
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) . . . . . . . . . . . . . . . 3
Baker v. Nelson:
409 U.S. 810 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
191 N.W.2d 185 (Minn. 1971) . . . . . . . . . . . . . . . . . . . . . . . 8
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) . . . . . . . . . 16, 19, 20, 21
Blodgett v. Holden, 275 U.S. 142 (1927) . . . . . . . . . . . . . . . 14
Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . 14
Bowen v. Gilliard, 483 U.S. 587 (1987) . . . . . . . . . . . . . . . . 16
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . . . 19
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) . . . . . . . . . . . . . . . . . . . 20
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . 9, 14, 15, 16, 17

V

Cases—Continued:

Page

Clark v. Jeter, 486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . 15
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009) . . . . . . . . 6, 9, 18, 19, 21
Diamond v. Charles, 476 U.S. 54 (1986) . . . . . . . . . . . . . . . 13
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998) . . . . . . . . . . . . . . . . . . . 20
FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) . . . . . 15
Frontiero v. Richardson, 411 U.S. 677 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 21
Goodridge v. Department of Pub. Health, 798 N.E.2d 941 (Mass. 2003) . . . . . . . . . . . . . . . . . . . . . . . 3
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . . . . . . . . 19
Golinski v. OPM, 824 F. Supp. 2d 968 (N.D. Cal. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . 14
Graham v. Richardson, 403 U.S. 365 (1971) . . . . . . . . . . . 17
Heller v. Doe, 509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . 6
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) . . . . . . . . 16, 19, 20, 21
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
INS v. Chadha, 462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . 12
Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . 10, 16, 17, 20
Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004), cert. denied, 542 U.S. 1081 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Medeiros v. Vincent, 431 F.3d 25 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006) . . . . . . . . . . . . . . . . . . . . 5

VI

Cases—Continued:

Page

National Gay Task Force v. Board of Educ., 729 F.2d 1270 (10th Cir. 1984), aff ’d by an equally divided court, 470 U.S. 903 (1985) . . . . . . . . . . . . . . . . . . 19
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. . . . . . . . . . . . . . . . . 12
Newdow v. United States Congress, 313 F.3d 495 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) . . . . . . . . 20
Raines v. Byrd, 521 U.S. 811 (1997) . . . . . . . . . . . . . . . . . . 13
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997) . . . . . . . . . . . . . . . . . . . 19
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . 9, 16, 18
Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . . . . . . . . . 14, 19
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) . . . . . . . 14
South Dakota v. Dole, 483 U.S. 203 (1987) . . . . . . . . . . . . . . 5
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) . . . . . . . . . . 19
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996) . . . . . . . . . . . . . . . . . . . 19
United States v. Gainey, 380 U.S. 63 (1965) . . . . . . . . . . . . 14
United States v. Lovett:
328 U.S. 303 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
327 U.S. 773 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . 14
United States v. Stevens, 130 S. Ct. 1577 (2010) . . . . . . . . 14
United States v. Virginia, 518 U.S. 515 (1996) . . . . . . . . . 15 United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . 14 United States Dep’t of Agric. v. Moreno, 413 U.S. 528
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII

Cases—Continued:

Page

Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464 (1982) . . . 13
Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990) . . . . . . . . . 19, 20

Constitution, statutes and rule:

U.S. Const.: Art. I, § 8, Cl. 1 (Spending Clause) . . . . . . . . . . . . . . . 5, 10 Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 8, 11, 18 Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 10
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 § 2, 110 Stat. 2419 (28 U.S.C. 1738C) . . . . . . . . . . . 2, 11 § 3, 110 Stat. 2419 (1 U.S.C. 7) . . . . . . . . . . . . . passim
5 U.S.C. 8901 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 U.S.C. 106 (2006 & Supp IV 2010) . . . . . . . . . . . . . . . . . . 4 28 U.S.C. 530D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 42 U.S.C. 402(f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. 402(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

H.R. Rep. No. 664, 104th Cong., 2d Sess. (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 17, 18
Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011), available at http://www.justice.gov/ opa/pr/ 2011/February/11-ag-223.html . . . . . . . . . . 6, 7, 12

VIII

Miscellaneous—Continued:

Page

U.S. Gen. Accounting Office, Report No. GAO-04353R, Defense of Marriage Act: Update to Prior Report (2004), http://www.gao.gov/new.items/ d04353r.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

In the Supreme Court of the United States
No. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL., PETITIONERS v.
COMMONWEALTH OF MASSACHUSETTS
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
PETITIONERS
v. NANCY GILL, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States Department of Health and Human Services et al., respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a28a) is not yet reported but is available at 2012 WL 1948017. The opinion of the district court in Gill v. Office of Personnel Management (App., infra, 29a-72a) is reported at 699 F. Supp. 2d 374. The opinion of the district court in Massachusetts v. United States Depart-
(1)

2
ment of Health & Human Services (App., infra, 82a120a) is reported at 698 F. Supp. 2d 234.
JURISDICTION
The judgment of the court of appeals was entered on May 31, 2012. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pertinent constitutional and statutory provisions are set forth in the appendix to this petition. App., infra, 125a.
STATEMENT
1. a. Congress enacted the Defense of Marriage Act (DOMA or Act) in 1996. Pub. L. No. 104-199, 110 Stat. 2419. DOMA contains two principal provisions. The first, Section 2 of the Act, provides that no State is required to give effect to any public act, record, or judicial proceeding of another State that treats a relationship between two persons of the same sex as a marriage under its laws. DOMA § 2, 110 Stat. 2419 (28 U.S.C. 1738C).
The second provision, Section 3, which is at issue in this case, defines “marriage” and “spouse” for all purposes under federal law to exclude marriages between persons of the same sex, including marriages recognized under state law. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only

3
to a person of the opposite sex who is a husband or a wife. DOMA § 3, 110 Stat. 2419 (1 U.S.C. 7). b. Congress enacted DOMA in response to the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), which held that the denial of marriage licenses to same-sex couples was presumptively invalid under the Hawaii Constitution. H.R. Rep. No. 664, 104th Cong., 2d Sess. 2 (1996) (1996 House Report). Although Hawaii ultimately did not permit same-sex marriage, other States, including respondent Massachusetts, have since recognized such marriages under their respective laws. See App., infra, 2a-3a nn.1-2; Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that recognize them, it excludes all such marriages from recognition for purposes of more than 1000 federal statutes and programs whose administration turns in part on individuals’ marital status. See U.S. Gen. Accounting Office, Report No. GAO-04-353R, Defense of Marriage Act: Update to Prior Report 1 (2004), http://www.gao.gov/ new.items/d04353r.pdf (GAO Report) (identifying 1138 federal laws that are contingent on marital status or in which marital status is a factor). Section 3 of DOMA thus denies to legally married same-sex couples many substantial benefits otherwise available to legally married couples under federal employment, immigration, public health and welfare, tax, and other laws. See id. at 16-18; App., infra, 3a-4a, 13a-14a. 2. a. The individual respondents are seven same-sex couples married in Massachusetts and three surviving spouses of same-sex couples married in Massachusetts. They filed suit in the United States District Court for the District of Massachusetts, alleging that, as a result

4 of Section 3, they had been denied certain federal benefits otherwise available to married couples or surviving spouses, including federal health plan benefits for spouses of federal employees, see 5 U.S.C. 8901 et seq.; social security benefits for surviving spouses of insured individuals, see 42 U.S.C. 402(f) and (i), and benefits based on the earnings record of a spouse; and the ability to file federal income tax returns as married joint filers or to exclude the value of employer-provided health insurance coverage for a spouse from federally taxable income, see 26 U.S.C. 106 (2006 & Supp. IV 2010). Second Am. Compl. ¶¶ 67-413, Gill v. Office of Pers. Mgmt., No. 1:09-cv-10309 (D. Mass. May 25, 2010); see App., infra, 4a, 10a. They contended that Section 3 violates the right of equal protection secured by the Fifth Amendment and sought to enjoin Section 3’s enforcement, as well as other relief. Ibid.
Respondent Massachusetts filed a separate action challenging the constitutionality of Section 3 of DOMA. Massachusetts alleged that, as a result of Section 3, it would risk loss of federal funding if it treated legally married same-sex couples as married for purposes of determining eligibility for participation in the State’s Medicaid program or for burial as a spouse of a veteran in a veterans’ cemetery funded in part by federal grants. Compl. ¶¶ 46-79, Massachusetts v. United States Dep’t of Health & Human Servs., No. 1:09-cv-11156 (D. Mass. July 8, 2009); see App., infra, 4a-5a. Massachusetts contended that Section 3 violates the Tenth Amendment and principles of federalism and the Spending Clause as applied to the Medicaid and State Cemetery Grants Program. Massachusetts sought to enjoin enforcement of Section 3, as well as other relief. Compl. ¶¶ 80-100, Massachusetts, supra.
b. In separate opinions issued on the same day, the district court held Section 3 of DOMA unconstitutional

5 and entered judgment against petitioners. App., infra, 29a-72a, 75a-81a. Ruling in favor of the individual respondents in Gill, the court concluded that Section 3 violates the Fifth Amendment’s equal protection guarantee. Without addressing respondents’ argument that Section 3 should be subject to strict constitutional scrutiny, the district court concluded that Section 3 “fails to pass constitutional muster even under the highly deferential rational basis test,” id. at 51a, because “ ‘there exists no fairly conceivable set of facts that could ground a rational relationship’” between the classification employed in DOMA Section 3 “and a legitimate government objective,” ibid. (quoting Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006)); see id. at 51a-71a.
In a separate opinion, the district court ruled in favor of Massachusetts on its action. App., infra, 82a-120a. The court concluded that Section 3 violates the Spending Clause because it impermissibly “induce[s] the States to engage in activities that would themselves be unconstitutional” by conditioning federal funds on the denial of marriage-based benefits to legally married same-sex couples without a rational basis for the differential treatment. Id. at 108a (quoting South Dakota v. Dole, 483 U.S. 203, 210 (1987)). The court further concluded that Section 3 violates the Tenth Amendment because it “plainly intrudes on a core area of state sovereignty— the ability to define the marital status of its citizens.” Id. at 111a.
The district court enjoined petitioners from enforcing Section 3, but stayed its order pending appeal. App., infra, 5a.
3. The government appealed in both cases, and the cases were consolidated in the court of appeals. In its opening brief, the government explained that binding First Circuit precedent holds that classifications based

6 on sexual orientation are subject to rational basis review, rather than the more searching review applicable to constitutionally suspect or quasi-suspect classifications such as race, national origin, gender, or illegitimacy. Gov’t Initial C.A. Br. 25-26 (citing Cook v. Gates, 528 F.3d 42, 60, 62 (1st Cir. 2008), cert. denied, 556 U.S. 1289 (2009)). Pointing to this Court’s cases holding that a classification subject to rational basis review “must be upheld . . . if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 27 (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)), the government argued that Section 3 satisfies that “highly deferential” standard, id. at 26, 29-55.
After the government filed its opening brief in this case, the Attorney General sent a notification to Congress under 28 U.S.C. 530D that he and the President had determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples who are legally married under state law. Letter from Eric H. Holder Jr., Att’y Gen., to John A. Boehner, Speaker, House of Representatives (Feb. 23, 2011) (Attorney General Letter).1 The letter explained that, while the Department of Justice had previously defended Section 3 in courts whose binding precedent required application of rational basis review to classifications based on sexual orientation, the President and the Department of Justice had conducted a new examination of the issue after two lawsuits had been filed in a circuit that had yet to address the appropriate standard of review. Id. at 1-2. The Attorney General explained that, after examining several factors this Court has identified as relevant to the applicable level of scrutiny, including the history of discrimination against gay and lesbian individuals and the rele-
1 Text available at http://www.justice.gov/opa/pr/2011/February/ 11-ag-223.html.

7 vance of sexual orientation to legitimate policy objectives, he and the President had concluded that Section 3 warrants application of heightened scrutiny rather than rational basis review. Id. at 2-4. The Attorney General further explained that both he and the President had concluded that Section 3 fails that standard of review and is therefore unconstitutional. Id. at 4-5.
The Attorney General’s letter reported that, notwithstanding this determination, the President had “instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.” Attorney General Letter 5. The Attorney General explained that “[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid. In the interim, the Attorney General instructed the Department’s lawyers to cease defense of Section 3. Id. at 5-6. Finally, the Attorney General noted that the Department’s lawyers would take appropriate steps to “provid[e] Congress a full and fair opportunity to participate” in litigation concerning the constitutionality of Section 3. Id. at 6.
After the Attorney General’s letter, the government informed the First Circuit that it would no longer defend the constitutionality of Section 3 and sought to withdraw its opening brief. The court of appeals denied the government’s motion but permitted the government to file a superseding brief. 6/16/11 Order 2. The government thereafter filed a superseding brief in the court of appeals in which it set forth its view that Section 3 is unconstitutional under heightened scrutiny. The government argued that the legislative purposes motivating

8 the enactment of Section 3, as articulated in the 1996 House Report, are insufficient to justify the exclusion of same-sex couples legally married in their States from federal benefits available to other married couples. See Gov’t Superseding C.A. Br. 22-23.
Respondent Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a fivemember bipartisan leadership group, moved to intervene to present a defense of the constitutionality of Section 3.2 The court of appeals granted the motion. 6/16/11 Order 2.
4. The individual respondents petitioned for initial hearing en banc. The court of appeals denied the petition, with three judges dissenting. A panel of the court of appeals then affirmed the judgment of the district court in part, holding DOMA Section 3 invalid under the equal protection component of the Fifth Amendment. App., infra, 1a-28a.
At the outset, the court of appeals distinguished the question at issue in this case from the question whether a State constitutionally may choose to limit marriage to persons of the opposite sex. App., infra, 7a-8a; see also id. at 23a-24a. The court thus rejected BLAG’s threshold argument that “any equal protection challenge to DOMA is foreclosed” by this Court’s summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), which sought review of the Minnesota Supreme Court’s decision upholding the constitutionality of a state statute interpreted to limit marriage to persons of the opposite sex, see Baker v. Nelson, 191 N.W.2d 185, 185187 (1971). App., infra, 7a. The court of appeals reasoned that because Baker concerned a different question, the Court’s summary dismissal cannot resolve this
2 Two of the group’s five members declined to support intervention. BLAG C.A. Mot. to Intervene 1 n.1 (May 20, 2011).

9 case. Id. at 8a. In the court’s view, however, Baker “does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Ibid.
To evaluate the constitutionality of Section 3, the court concluded that it was bound by its precedent to apply rational basis review. App., infra, 10a (citing Cook, supra). The court determined that Section 3’s challengers could not prevail under what it termed “classic rational basis review,” id. at 11a—i.e., “rational basis review as conventionally applied in routine matters of commercial, tax and like regulation,” id. at 9a—under which “[c]ourts accept as adequate any plausible factual basis” for a law that distinguishes between different groups of people, “without regard to Congress’ actual motives” or to whether Congress’s chosen means are “entirely consistent with” its legislative ends, ibid.
The court of appeals concluded, however, that Section 3 warrants more searching review than “the extreme deference accorded to ordinary economic legislation.” App., infra, 14a. The court of appeals relied for that conclusion on cases in which this Court has “struck down state or local enactments without invoking any suspect classification” where “the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.” Id. at 11a-12a (citing United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996)). The court of appeals noted that, in each of those cases, the Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute” and “undert[ook] a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review,” id. at 13a, focusing on “the case-specific

10 nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered,” id. at 12a. The court of appeals concluded that Section 3 warrants similarly careful review because “gays and lesbians have long been the subject of discrimination,” id. at 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)), and because Section 3 imposes substantial burdens on married same-sex couples by precluding access to “medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country,” id. at 14a.
In the court of appeals’ view, that analysis “is uniquely reinforced by federalism concerns.” App., infra, 18a. The court concluded that, while “neither the Tenth Amendment nor the Spending Clause invalidates DOMA,” id. at 14a, Section 3 represents a broad intrusion on the States’ historic powers to regulate domestic relations, and, as such, warrants more searching examination of the purported bases for the legislation, id. at 14a-18a.
The court of appeals concluded that the rationales for Section 3, as reflected in the 1996 House Report and amplified in briefing, are insufficient to justify the statute’s burden on same-sex married couples. App., infra, 18a-24a. The court reasoned that neither a desire to “preserv[e] scarce government resources” nor to express moral disapproval, without more, justifies differential treatment of “a historically disadvantaged group,” id. at 19a-20a. It further reasoned that Section 3 lacks “any demonstrated connection” to a statutory purpose of “support[ing] child-rearing in the context of stable marriage” or of promoting heterosexual marriage, since Section 3 neither precludes same-sex couples in Massachusetts from raising children nor “affect[s] the gender choices of those seeking marriage” in that State. Id. at 20a-21a.

11
Finally, the court rejected the argument that, in the face of “a prospective change in state marriage laws, Congress was entitled to ‘freeze’ the situation and reflect,” explaining that “[t]he House Report’s own arguments—moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.” App., infra, 22a. And while the House Report “did emphasize a related concern * * * that state judges would impose same-sex marriage on unwilling states,” the court explained that States can “protect themselves against what their citizens may regard as overreaching,” and that the concern in any event is addressed by Section 2 of DOMA, which is not at issue in this case. Ibid.
In evaluating Section 3’s constitutionality, the court of appeals “d[id] not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality.” App., infra, 23a. The court reasoned that “[t]he many legislators who supported DOMA acted from a variety of motives,” including a desire to “preserve the heritage of marriage as traditionally defined.” Ibid. But the court concluded that Section 3 is invalid because the “denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Id. at 24a.
REASONS FOR GRANTING THE PETITION
Section 3 of DOMA denies to same-sex couples legally married under state law significant federal benefits that are otherwise available to persons lawfully married under state law. The court of appeals correctly concluded that none of the rationales for Section 3’s passage justifies such disparate treatment of same-sex married couples. Section 3 therefore violates the guarantee of equal protection secured by the Fifth Amendment.

12
Although the Executive Branch agrees with the court of appeals’ determination that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3’s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional. Attorney General Letter 5; see p. 7, supra. As federal officials charged with Section 3’s enforcement, and against whom judgment was entered below, petitioners are the proper parties to invoke this Court’s power to review the court of appeals’ judgment. See INS v. Chadha, 462 U.S. 919, 930-931 (1983) (“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional,” it may appeal that decision, even though “the Executive may agree with the holding that the statute in question is unconstitutional.”); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (reviewing constitutionality of a federal statute on the petition of the Solicitor General, even though the Solicitor General agreed with the lower court’s holding that the statute was unconstitutional); see United States v. Lovett, 327 U.S. 773 (1946) (granting Solicitor General’s petition for a writ of certiorari).3
3 The fact that the government agrees with respondents that Section 3 is unconstitutional does not prevent this Court from resolving that issue. Cf., e.g., National Fed’n of Indep. Businesses v. Sebelius, No. 11-393 (June 28, 2012), slip op. 11. Consistent with 28 U.S.C. 530D and prior practice in cases in which the Department has declined to defend the constitutionality of an Act of Congress, the Attorney General notified the Speaker of the House of Representatives, the President of the Senate, and other congressional leaders of the Department's position in this case. The Department did not oppose the subsequent interven-

13
This Court’s review is warranted because the court of appeals invalidated an Act of Congress, and because the court of appeals’ decision raises important questions concerning the proper standards for reviewing classifications based on sexual orientation that should be resolved by this Court. Authoritative resolution of the question presented is of great importance to the United States and to respondents and tens of thousands of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law. The petition for a writ of certiorari should be granted.
A. This Court’s Review Is Warranted Because The Court Of Appeals Invalidated An Act Of Congress
Review by this Court is warranted because the court of appeals invalidated a provision of an Act of Congress as unconstitutional. Although no other court of appeals
tion by BLAG for the purpose of presenting arguments in support of the constitutionality of Section 3. Although the interest of Members of Congress in the constitutionality of a federal statute does not confer standing on them to invoke this Court’s power to review a judgment entered against the Executive Branch petitioners to prevent them from implementing the statute, see, e.g., Raines v. Byrd, 521 U.S. 811 (1997); Diamond v. Charles, 476 U.S. 54 (1986); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 482-483 (1982); Newdow v. United States Congress, 313 F.3d 495, 499-500 (9th Cir. 2002), with the case now before this Court on this petition filed by the Executive Branch petitioners, it is appropriate for BLAG to present arguments in defense of the validity of the measure. See, e.g., Lovett, 328 U.S. at 306-307 (after this Court granted the petition for a writ of certiorari filed by the Solicitor General on behalf of the United States, counsel for Congress appeared to present argument in support of the constitutionality of the challenged legislation). Because the Executive Branch petitioners have properly invoked the jurisdiction of this Court, there is no need for the Court to address the question whether BLAG has independent standing to seek review of the court of appeals’ decision.

14
has yet passed on the constitutionality of Section 3 of DOMA, this Court’s ordinary practice is to grant review when a court of appeals holds a federal statute unconstitutional, even in the absence of a circuit conflict. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000); National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty” of the courts. Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.)). Respect for a coequal branch of government counsels in favor of reviewing a lower court’s exercise of “the grave power of annulling an Act of Congress.” United States v. Gainey, 380 U.S. 63, 65 (1965).
B. The Decision Below Raises Important Questions Of Federal Law That Should Be Settled By This Court
Review is also warranted because the court of appeals’ invalidation of Section 3 raises important questions of federal law that have not been, but should be, settled by this Court. See Sup. Ct. R. 10(c).
1. The Constitution’s equal protection guarantee, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497, 500 (1954), embodies a basic requirement that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

15 Under this Court’s precedents, general social and economic legislation is ordinarily presumed valid, even though it may draw distinctions between different classes of individuals. Cleburne, 473 U.S. at 440. The Court will thus generally uphold such legislation if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). This Court has held that this deferential framework of review does not, however, apply to legislation that classifies on the basis of certain characteristics, including race, national origin, illegitimacy, and gender, that are deemed “suspect” or “quasi-suspect.” “These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.” Cleburne, 473 U.S. at 440-441. The law thus calls for more searching constitutional review of such classifications to determine whether they are adequately justified by legitimate state interests. Heightened scrutiny calls on courts to examine only the “actual [governmental] purposes” underlying such classifications rather than “rationalizations for actions in fact differently grounded,” United States v. Virginia, 518 U.S. 515, 535-536 (1996), and to determine, at a minimum, whether the classification bears a substantial relationship to an important governmental objective, Clark v. Jeter, 486 U.S. 456, 461 (1988). This Court’s cases have identified a number of factors to guide the determination whether heightened scrutiny applies to legislation targeting certain classes of individuals for less favorable treatment. These factors include: (1) whether the group in question has suf-

16 fered a history of discrimination; (2) whether members of the group share obvious, immutable, or distinguishing characteristics; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 682-688 (1973) (plurality opinion); see also Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Cleburne, 473 U.S. at 435-441.
2. Section 3 of DOMA draws distinctions between couples who are legally married under their States’ laws based on their sexual orientation. It excludes same-sex married couples—whether men or women—from the federal recognition and benefits available to oppositesex married couples.
This Court has never decided the appropriate equal protection framework for reviewing classifications based on sexual orientation. Cf. Romer v. Evans, 517 U.S. 620, 634-635 (1996) (invalidating a state constitutional amendment prohibiting any state or local action designed to protect gay and lesbian individuals as lacking a rational basis, without considering whether the classification warranted heightened scrutiny). The factors the Court has identified as relevant to the inquiry, however, counsel strongly in favor of treating sexual orientation classifications with suspicion.
As the court of appeals noted, “gays and lesbians have long been the subject of discrimination.” App., infra, 13a (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465-466 (7th Cir. 1989) (“Homosexuals have suffered a history of discrimination and still do, though possibly

17 now in less degree.”), cert. denied, 494 U.S. 1004 (1990). Gay and lesbian individuals also represent a “minority,” App., infra, 22a, that has “historically been less able to protect itself through the political process,” id. at 20a. That group is defined by a distinguishing characteristic—sexual orientation—that is not ordinarily “relevant to interests the State has the authority to implement,” Cleburne, 473 U.S. at 441. Heightened scrutiny of legislative classifications based on sexual orientation is therefore warranted to ensure that they do not “invidiously relegat[e]” gay and lesbian individuals to “inferior legal status,” Frontiero, 411 U.S. at 687 (plurality opinion), based simply on a view that gay and lesbian individuals as a class “are not as worthy or deserving as others,” Cleburne, 473 U.S. at 440.
Section 3 of DOMA fails under heightened scrutiny. The disparate treatment of gay and lesbian individuals who are legally married under state law does not substantially advance any important governmental purpose that motivated the enactment of Section 3.
To begin with, because Section 3 does not purport to forbid same-sex marriage, but instead simply denies federal benefits to same-sex couples who are already married, it does not meaningfully advance any cognizable federal interest in “defending and nurturing the institution of traditional, heterosexual marriage.” 1996 House Report 12. Nor does denying benefits to samesex married couples substantially further an interest in “encouraging responsible procreation and child-rearing.” Id. at 13.
This Court’s cases, moreover, have made clear that neither moral disapproval nor the desire to preserve “scarce government resources,” 1996 House Report 12, adequately justifies legislation that targets suspect or quasi-suspect classes for adverse treatment, see Law-

18 rence, 539 U.S. at 577; Graham v. Richardson, 403 U.S. 365, 374-375 (1971).
Finally, insofar as the House Committee Report cited the federal government’s interest in “protecting state sovereignty and democratic self-governance,” it cited that rationale in connection with Section 2, not Section 3. 1996 House Report 16-18. Section 3 bears no substantial connection to that rationale in any event; it was not, for example, “framed as a temporary measure” to facilitate the States’ own choices about whether to recognize same-sex marriage, App., infra, 22a, but instead was designed indefinitely to deny recognition to same-sex married couples for purposes of a wide array of federal statutes and programs, regardless of the content of state law.
The mismatch between Section 3’s stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals “not to further a proper legislative end but to make them unequal to everyone else.” Romer, 517 U.S. at 635; see 1996 House Report 15 n.53 (suggesting that “[m]aintaining a preferred societal status of heterosexual marriage” will “promot[e] heterosexuality”); id. at 16 (citing “a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”). Section 3 accordingly violates the guarantee of equal protection secured by the Fifth Amendment.
3. The First Circuit, like every other court of appeals that has addressed the issue to date, concluded in a prior case that classifications based on sexual orientation are subject to rational basis review, rather than the heightened scrutiny applicable to suspect or quasi-suspect classifications. See Cook v. Gates, 528 F.3d 42, 61 (2008), cert. denied, 556 U.S. 1289 (2009)). Neither Cook nor any other case has, however, offered an explanation for that

19
conclusion that withstands scrutiny under this Court’s precedents.4
The earliest court of appeals decisions addressing the issue simply assumed without explanation that gay and lesbian individuals are not a suspect or quasi-suspect class. See, e.g., Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986), overruled on other grounds by Lawrence, supra; National Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam).
Following this Court’s now-overruled decision upholding a state law criminalizing sodomy, Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, supra, some courts of appeals relied on that holding to conclude that discrimination against gay and lesbian individuals is presumptively constitutional. Those courts reasoned that they could not “constitute either a ‘suspect class’ or a ‘quasi-suspect class’ ” if “the conduct which defined them as homosexuals was constitutionally proscribable.”
4 Cook and a number of cases in other circuits involved challenges to military policies on “homosexual conduct.” See 528 F.3d at 45; see also Richenberg v. Perry, 97 F.3d 256, 258 (8th Cir. 1996), cert. denied, 522 U.S. 807 (1997); Thomasson v. Perry, 80 F.3d 915, 919 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Steffan v. Perry, 41 F.3d 677, 682 (D.C. Cir. 1994) (en banc); High Tech Gays, 895 F.2d at 565; Ben- Shalom, 881 F.2d at 456; Woodward v. United States, 871 F.2d 1068, 1069 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990). As a number of those courts have noted, because Congress’s authority to raise and support armies commands special judicial deference, classifications in the military context may present different questions from classifications in the civilian context. Rostker, 453 U.S. at 64-65, 70 (upholding male-only selective service registration against sex-discrimination challenge); see Goldman v. Weinberger, 475 U.S. 503, 507-509 (1986) (upholding military dress regulations barring the wearing of a yarmulke against First Amendment challenge); see also, e.g., Steffan, 41 F.3d at 685 (citing the “special deference” owed “to the ‘considered professional judgment’ of ‘appropriate military officials’ ”) (quoting Goldman, 475 U.S. at 509).

20 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998); accord Ben-Shalom, 881 F.2d at 464; Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); see also High Tech Gays, 895 F.2d at 570-571 (relying in part on Ben-Shalom, Woodward, and Padula to conclude that gay and lesbian individuals are not a suspect or quasisuspect class); cf. Lawrence, 539 U.S. at 575 (noting that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”). This Court’s decision in Lawrence contradicts that basic premise.
Some courts of appeals also reasoned that gay and lesbian individuals differ from previously recognized suspect and quasi-suspect classes in that members of such classes, “e.g., blacks or women, exhibit immutable characteristics, whereas homosexuality is primarily behavioral in nature.” Woodward, 871 F.2d at 1076; accord High Tech Gays, 895 F.2d at 573. Subsequent decisions of this Court have undermined that reasoning. See Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2990 (2010) (noting that this Court’s cases have “declined to distinguish between status and conduct in this context”) (citing, inter alia, Lawrence, 539 U.S. at 575, and id. at 583 (O’Connor, J., concurring in the judgment)); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Some courts have further suggested that heightened constitutional protection against invidious discrimination is unnecessary because gay and lesbian individuals “have the ability to and do ‘attract the attention of the lawmakers,’ ” as evidenced by the passage of anti-discrimination

21 legislation in some States. High Tech Gays, 895 F.2d at 574 (citing, inter alia, Ben-Shalom, 881 F.2d at 466). But this Court has not considered the passage of antidiscrimination laws in some States—or even by the federal government—to eliminate the need for searching judicial review of other laws that disadvantage a protected class. On the contrary, the plurality opinion in Frontiero cited the enactment of federal protections against sex discrimination as bolstering the conclusion that sex-based classifications are inherently invidious and thus deserving of heightened constitutional scrutiny. See 411 U.S. at 687-688.
Finally, the most recent decisions applying rational basis review, including the First Circuit’s decision in Cook, have simply relied on other courts’ decisions, see Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 & n.16 (11th Cir. 2004) (citing cases), cert. denied, 543 U.S. 1081 (2005), or on the fact that this Court “has never ruled that sexual orientation is a suspect classification for equal protection purposes,” even though the Court has never squarely confronted that question, Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866 (8th Cir. 2006); accord Cook, 528 F.3d at 61. No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents.
4. Although the court of appeals in this case acknowledged that there is “[s]ome similarity” between the factors underlying this Court’s decision to extend heightened scrutiny to gender-based classifications and those applicable to sexual orientation classifications, it concluded that circuit precedent foreclosed extending heightened scrutiny to sexual orientation classifications. App., infra, 10a (citing Cook, supra). But while the court determined that Section 3 would survive “conventional rational basis review,” id. at 9a, 13a, it concluded that

22
Section 3’s effect on a minority group that has been politically unpopular and has suffered a long history of discrimination, reinforced by federalism concerns, warranted application of “closer than usual” review, id. at 7a, 14a-15a, 22a. Thus, rather than extend to Section 3 the “extreme deference accorded to ordinary economic legislation,” id. at 14a, the court below examined the purposes underlying the enactment of Section 3 and found an insufficient connection to any legitimate governmental end to justify denying federal benefits to same-sex couples who are legally married under state law.
As the court of appeals itself acknowledged, the proper approach for reviewing the constitutionality of Section 3 is a matter that only this Court can resolve. See App., infra, 7a (“We have done our best to discern the direction of [Supreme Court precedent], but only the Supreme Court can finally decide this unique case.”). This Court’s review is warranted to consider the important questions raised by the decision below.
C. Authoritative Resolution Of The Question Presented Is Of Great Public Importance
1. Section 3 applies to more than 1000 federal statutes and programs whose administration depends in part on marital status. See GAO Report 1. The issues decided below therefore have a substantial impact on the conduct of a wide array of Executive functions. As a result of the President’s instruction to continue enforcement of Section 3 pending final judicial resolution of its constitutionality, so as to ensure that the Judiciary is the final arbiter of the constitutional question, Executive departments and agencies will continue to deny federal benefits to scores of affected individuals until this Court reaches a definitive resolution. Other cases challenging the constitutionality of Section 3 of DOMA are currently pending in courts across the country. A timely and defin-

23 itive ruling on Section 3’s constitutionality is accordingly of exceptional practical importance to the United States and to the tens of thousands of individuals affected by Section 3.
2. To help ensure that the Court will have an appropriate vehicle in which to resolve the issues presented in a timely and definitive fashion, the government is also filing today a petition for a writ of certiorari before judgment in Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal pending, No. 12-15388 (9th Cir. filed Feb. 24, 2012) and No. 12-15409 (9th Cir. filed Feb. 28, 2012).
In Golinski, supra, the district court held that heightened scrutiny applies to classifications based on sexual orientation and that Section 3 fails that standard of review. In the alternative, the district court held that Section 3 is invalid under rational basis review. Golinski provides an appropriate vehicle for the Court to consider the constitutionality of Section 3.

24
CONCLUSION
The petition for a writ of certiorari should be granted. Respectfully submitted.
DONALD B. VERRILLI, JR. Solicitor General
STUART F. DELERY Acting Assistant Attorney General
SRI SRINIVASAN Deputy Solicitor General
LEONDRA R. KRUGER PRATIK A. SHAH
Assistants to the Solicitor General
MICHAEL JAY SINGER AUGUST E. FLENTJE BENJAMIN S. KINGSLEY
Attorneys
JULY 2012

APPENDIX A UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 10-2204 COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF, APPELLEE v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS, APPELLANTS
Nos. 10-2207 & 10-2214 DEAN HARA, PLAINTIFF, APPELLEE/CROSS-APPELLANT, NANCY GILL, ET AL., PLAINTIFFS, APPELLEES, KEITH TONEY, ET AL., PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL., DEFENDANTS, APPELLANTS/CROSS-APPELLEES, HILARY RODHAM CLINTON, IN HER OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF STATE,
DEFENDANT
Filed: May 31, 2012
(1a)

2a APPEALS FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before: LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.
BOUDIN, Circuit Judge. These appeals present constitutional challenges to section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married. Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom.
In 1993, the Hawaii Supreme Court held that it might violate the Hawaii constitution to deny marriage licenses to same-sex couples. Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993). Although Hawaii then empowered its legislature to block such a ruling, Haw. Const. art. I, § 23—which it did, Act of June 22, 1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev. Stat. § 572-1)—the Hawaii decision was followed by legalization of same-sex marriage in a small minority of states, some by statute and a few by judicial decision;1
1 E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A. 8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

3a
many more states responded by banning same-sex marriage by statute or constitutional amendment.2
Congress reacted with the same alarm as many state legislatures. Within three years after the Hawaii decision, DOMA was enacted with strong majorities in both Houses and signed into law by President Clinton. The entire statute, reprinted in an addendum to this decision, must—having only two operative paragraphs—be one of the shortest major enactments in recent history. Section 3 of DOMA, 1 U.S.C. § 7, defines “marriage” for purposes of federal law:
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. Section 2, which is not at issue here, absolves states from recognizing same-sex marriages solemnized in other states. DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26
2 E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140) (West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May 13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West) (codified at Ind. Code § 31-11-1-1).

4a U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f ), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with samesex spouses.
DOMA affects a thousand or more generic cross-references to marriage in myriad federal laws. In most cases, the changes operate to the disadvantage of samesex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.3 Further, DOMA has potentially serious adverse consequences, hereafter described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit in federal district court to enjoin pertinent federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. The Commonwealth brought a companion case, Massachusetts v. DHHS, No. 10-2204, concerned that DOMA will revoke federal funding for programs tied to DOMA’s opposite-sex marriage definition—such
3 U.S. Census Bureau, Census Bureau Releases Estimates of SameSex Married Couples (Sept. 27, 2011),http://www.census.gov/newsroom/ releases/archives/2010_census/cb11-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children: 2010 Census and 2010 American Community Survey, http://www.census.gov/hhes/samesex/files/supptable-AFF.xls (last visited May 22, 2012).

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as Massachusetts’ state Medicaid program and veterans’ cemeteries.
By combining the income of individuals in same-sex marriages, Massachusetts’ Medicaid program is noncompliant with DOMA, and the Department of Health and Human Services, through its Centers for Medicare and Medicaid Services, has discretion to rescind Medicaid funding to noncomplying states. Burying a veteran with his or her same-sex spouse removes federal “veterans’ cemetery” status and gives the Department of Veterans’ Affairs discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district court but, on July 8, 2010, that court found section 3 unconstitutional under the Equal Protection Clause. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the companion case, the district court accepted the Commonwealth’s argument that section 3 violated the Spending Clause and the Tenth Amendment. Massachusetts v. U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The district court’s judgment declared section 3 unconstitutional and enjoined the federal officials and agencies from enforcing section 3, but the court stayed injunctive relief pending appeals. The judgment included specific remedies ordered for the named plaintiffs in relation to tax, social security and like claims. With one qualification—discussed separately below—the federal defendants have throughout focused solely upon the district court’s premise that DOMA is unconstitutional.

6a
The Justice Department filed a brief in this court defending DOMA against all constitutional claims. Thereafter, altering its position, the Justice Department filed a revised brief arguing that the equal protection claim should be assessed under a “heightened scrutiny” standard and that DOMA failed under that standard. It opposed the separate Spending Clause and Tenth Amendment claims pressed by the Commonwealth. The Gill plaintiffs defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department’s about face while defense of the statute passed to a group of Republican leaders of the House of Representatives—the Bipartisan Legal Advisory Group (“the Legal Group”)—who retained counsel and intervened in the appeal to support section 3. A large number of amicus briefs have been filed on both sides of the dispute, some on both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and the issues presented are themselves legal in character, even though informed by background information as to legislative purpose and “legislative facts” bearing upon the rationality or adequacy of distinctions drawn by statutes. E.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314-20 (1993). Such information is normally noticed by courts with the assistance of briefs, records and common knowledge. Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal protection and federalism with the need to assess

7a
the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine—not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
Equal Protection. The Legal Group says that any equal protection challenge to DOMA is foreclosed at the outset by Baker v. Nelson, 409 U.S. 810 (1972). There, a central claim made was that a state’s refusal to recognize same-sex marriage violated federal equal protection principles. Minnesota had, like DOMA, defined marriage as a union of persons of the opposite sex, and the state supreme court had upheld the statute. On appeal, the Supreme Court dismissed summarily for want of a substantial federal question. Id.
Baker is precedent binding on us unless repudiated by subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332, 344 (1975). Following Baker,

8a
“gay rights” claims prevailed in several well known decisions, Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996),4 but neither mandates that the Constitution requires states to permit same-sex marriages. A Supreme Court summary dismissal “prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.
Central to this appeal is Supreme Court case law governing equal protection analysis. The Gill plaintiffs say that DOMA fails under the so-called rational basis test, traditionally used in cases not involving “suspect” classifications. The federal defendants said that DOMA would survive such rational basis scrutiny but now urge, instead, that DOMA fails under so-called intermediate scrutiny. In our view, these competing formulas are inadequate fully to describe governing precedent.
Certain suspect classifications—race, alienage and national origin—require what the Court calls strict scrutiny, which entails both a compelling governmental in-
4 Lawrence struck down Texas’ statute forbidding homosexual sodomy and Romer overturned a Colorado constitutional amendment that curtailed the right of communities to enact laws to prevent discrimination against gays and lesbians. Although Lawrence rested on substantive due process precedent and not equal protection, precedents under the two rubrics use somewhat related tests as to levels of scrutiny— applied to liberty interests under the former and discrimination claims under the latter. Lawrence, 539 U.S. at 575-76, 578; Romer, 517 U.S. at 632, 635.

9a terest and narrow tailoring. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Gender-based classifications invoke intermediate scrutiny and must be substantially related to achieving an important governmental objective.5 Both are far more demanding than rational basis review as conventionally applied in routine matters of commercial, tax and like regulation.
Equal protection claims tested by this rational basis standard, famously called by Justice Holmes the “last resort of constitutional argument,” Buck v. Bell, 274 U.S. 200, 208 (1927), rarely succeed. Courts accept as adequate any plausible factual basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88 (1955), without regard to Congress’ actual motives. Beach Commc’ns, 508 U.S. at 314. Means need not be narrowly drawn to meet—or even be entirely consistent with—the stated legislative ends. Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.
5 United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion).

10a
The federal defendants conceded that rational basis review leaves DOMA intact but now urge this court to employ the so-called intermediate scrutiny test used by Supreme Court for gender discrimination. Some similarity exists between the two situations along with some differences, compare Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for categorization). But extending intermediate scrutiny to sexual preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined to create a major new category of “suspect classification” for statutes distinguishing based on sexual preference. Cook rejected an equal protection challenge to the now-superceded “Don’t Ask, Don’t Tell” policy adopted by Congress for the military, pointing out that Romer itself avoided the suspect classification label. Cook, 528 F.3d at 61-62. This binds the panel. San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for same-sex relationships would have far-reaching implications—in particular, by implying an overruling of Baker, which we are neither empowered to do nor willing to predict. Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do so in Romer—a case that could readily have been disposed by such a demarche. That such a classification could overturn marriage laws in a huge majority of individual states underscores the implications.

11a
However, that is not the end of the matter. Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.
In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions—not classic rational basis review—that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v. Moreno, 413 U.S. 528 (1973), invalidated Congress’ decision to exclude from the food stamp program households containing unrelated individuals. Disregarding purported justifications that such households were more likely to under-report income and to evade detection, the Court closely scrutinized the legislation’s fit—finding both that the rule disqualified many otherwise-eligible and particularly needy households, and a “bare congressional desire to harm a politically unpopular group.” Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), overturned a local ordinance as ap-

12a
plied to the denial of a special permit for operating a group home for the mentally disabled. The Court found unconvincing interests like protecting the inhabitants against the risk of flooding, given that nursing or convalescent homes were allowed without a permit; mental disability too had no connection to alleged concerns about population density. All that remained were “mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding.” Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the Court struck down a provision in Colorado’s constitution prohibiting regulation to protect homosexuals from discrimination. The Court, calling “unprecedented” the “disqualification of a class of persons from the right to seek specific protection from the law,” deemed the provision a “status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests.” Id. at 632-33, 635.
These three decisions did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered. Several Justices have remarked on this— both favorably, City of Cleburne, 473 U.S. at 451-55 (1985) (Stevens, J., concurring), and unfavorably, United States v. Virginia (VMI), 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
Circuit courts, citing these same cases, have similarly concluded that equal protection assessments are sensitive to the circumstances of the case and not dependent

13a
entirely on abstract categorizations.6 As one distinguished judge observed:
Judges and commentators have noted that the usually deferential “rational basis” test has been applied with greater rigor in some contexts, particularly those in which courts have had reason to be concerned about possible discrimination. United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi, J., concurring) (citing City of Cleburne as an example). There is nothing remarkable about this: categories are often approximations and are themselves constructed by weighing of underlying elements. All three of the cited cases—Moreno, City of Cleburne and Romer—stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review. As for burden, the combined effect of DOMA’s restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. For those married same-sex couples of which one partner is in federal service, the other cannot
6 E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir. 2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied, 525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th Cir. 1988), cert. denied, 489 U.S. 1081 (1989).

14a
take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.
These burdens are comparable to those the Court found substantial in Moreno, City of Cleburne, and Romer. Moreno, like this case, involved meaningful economic benefits; City of Cleburne involved the opportunity to secure housing; Romer, the chance to secure equal protection of the laws on the same terms as other groups. Loss of survivor’s social security, spouse-based medical care and tax benefits are major detriments on any reckoning; provision for retirement and medical care are, in practice, the main components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference accorded to ordinary economic legislation in cases like Lee Optical would not be extended to DOMA by the Supreme Court; and without insisting on “compelling” or “important” justifications or “narrow tailoring,” the Court would scrutinize with care the purported bases for the legislation. Before providing such scrutiny, a separate element absent in Moreno, City of Cleburne, and Romer—federalism—must be considered.
Federalism. In assailing DOMA, the plaintiffs and especially the Commonwealth rely directly on limitations attributed to the Spending Clause of the Constitution and the Tenth Amendment; the Justice Department, along with the Legal Group, rejects those claims. In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual

15a
scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation—domestic relations and the definition and incidents of lawful marriage—which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture. As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia, 388 U.S. 1, 7 (1967) (marriage). Consonantly, Congress has never purported to lay down a general code defining marriage or purporting to bind to the states to such a regime. Rather, in individual situations—such as the anti-fraud criteria in immigration law, 8 U.S.C. § 1186a(b)(1)(A)(i)—Congress has provided its own definitions limited to the particular program or personnel involved. But no precedent exists for DOMA’s sweeping general “federal” definition of marriage for all federal statutes and programs. Nevertheless, Congress surely has an interest in who counts as married. The statutes and programs that section 3 governs are federal regimes such as social security, the Internal Revenue Code and medical insurance for federal workers; and their benefit structure requires deciding who is married to whom. That Congress has

16a
traditionally looked to state law to determine the answer does not mean that the Tenth Amendment or Spending Clause require it to do so.
Supreme Court interpretations of the Tenth Amendment have varied over the years but those in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state government. Printz v. United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992). Whatever its spin-off effects, section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.
Neither does DOMA run afoul of the “germaneness” requirement that conditions on federal funds must be related to federal purposes. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The requirement is not implicated where, as here, Congress merely defines the terms of the federal benefit. In Dole, the Supreme Court upheld a condition by which federal funds for highway construction depended on a state’s adoption of a minimum drinking age for all driving on state roadways. 483 U.S. at 205. DOMA merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spend-

17a
ing Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7 cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA a “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens”).
7 The majority, focusing on the related issue of fit, said that “a departure from the fundamental principle of equal sovereignty [between states] requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a step further, stating “because States still retain sovereign authority over their election systems, any measure enacted in furtherance of the Fifteenth Amendment must be closely examined to ensure that its encroachment on state authority in this area is limited to the appropriate enforcement of this ban on discrimination.” Id. at 2520 (Thomas, J., concurring in part and dissenting in part).

18a
True, these federalism cases examined the reach of federal power under the Commerce Clause and other sources of constitutional authority not invoked here; but a statute that violates equal protection is likewise beyond the power of Congress. See Moreno, 413 U.S. at 541 (Douglas, J., concurring). Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.
DOMA’s Rationales. Despite its ramifying application throughout the U.S. Code, only one day of hearings was held on DOMA, Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. (1996) (“Hearing”), and none of the testimony concerned DOMA’s effects on the numerous federal programs at issue. Some of the odder consequences of DOMA testify to the speed with which it was adopted.8
The statute, only a few paragraphs in length, is devoid of the express prefatory findings commonly made in major federal laws. E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400; 21 U.S.C. § 801; 29 U.S.C.
8 For example, DOMA’s definition of marriage arguably undermines both federal ethics laws, 5 U.S.C. app. §§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in the military, 10 U.S.C. § 1787(a), insofar as it facially excludes same-sex married couples from their strictures. Other curiosities likely unintended are possible impacts on antinepotism provisions, 5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28 U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C. § 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and threats to family members of federal officials, id. § 115.

19a
§ 151; id. § 1001; 42 U.S.C. § 7401. Accordingly, in discerning and assessing Congress’ basis for DOMA our main resort is the House Committee report and, in lesser measure, to variations of its themes advanced in the briefs before us. The committee report stated:
[T]he Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. H.R. Rep. No. 104-664, at 12 (1996). The penultimate reason listed above was not directed to section 3—indeed, is antithetical to it—but was concerned solely with section 2, which reserved a state’s power not to recognize same-sex marriages performed in other states. Thus, we begin with the others, reserving for separate consideration the claim strongly pressed by the Gill plaintiffs that DOMA should be condemned because its unacknowledged but alleged central motive was hostility to homosexuality. First, starting with the most concrete of the cited reasons—“preserving scarce government resources”—it is said that DOMA will save money for the federal government by limiting tax savings and avoiding social security and other payments to spouses. This may well be true, or at least might have been thought true; more

20a
detailed recent analysis indicates that DOMA is more likely on a net basis to cost the government money.9
But, where the distinction is drawn against a historically disadvantaged group and has no other basis, Supreme Court precedent marks this as a reason undermining rather than bolstering the distinction. Plyler v. Doe, 457 U.S. 202, 227 (1982); Romer, 517 U.S. at 635. The reason, derived from equal protection analysis, is that such a group has historically been less able to protect itself through the political process. Plyler, 457 U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by the Legal Group’s brief and several others, is to support child-rearing in the context of stable marriage.10 The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.
9 Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (2004), available at http://www.cbo.gov/sites/ default/files/cbofiles/ftpdocs/55xx/doc5559/06-21-samesexmarriage.pdf.
10 The House Report refers obliquely to the importance of heterosexual marriage in “encouraging responsible procreation and childrearing,” H.R. Rep. No. 104-664, at 13, but the subcommittee chair at the House hearing began by saying that “heterosexual marriage provides the ideal structure within which to beget and raise children.” Hearing, supra, at 1 (opening statement of Rep. Canady).

21a
Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples—whose marriages may in any event be childless, unstable or both—or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at 446-50, but a lack of any demonstrated connection between DOMA’s treatment of samesex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is one of DOMA’s stated justifications:
Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian)morality. H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g., 142 Cong. Rec. 16,972 (1996) (statement of Rep. Coburn) (homosexuality “morally wrong”). For generations, moral disapproval has been taken as an adequate basis for legislation, although usually in choices made by state legislators to whom general police power is entrusted. But, speaking directly of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on this basis. 539 U.S. at 577-78. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have

22a
undercut this basis. Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group’s brief that, faced with a prospective change in state marriage laws, Congress was entitled to “freeze” the situation and reflect. But the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report’s own arguments— moral, prudential and fiscal—make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the Hawaii Supreme Court’s decision in Baehr, that state judges would impose same-sex marriage on unwilling states. H.R. Rep. No. 104-664, at 5-6, 12, 16-17. But almost all states have readily amended constitutions, as well as elected judges, and can protect themselves against what their citizens may regard as overreaching. The fear that Hawaii could impose same-sex marriage on sister states through the Full Faith and Credit Clause, id. at 7-9, relates solely to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require

23a
somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.
Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion). But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to homosexuality. The many legislators who supported DOMA acted from a variety of motives, one central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization. See H.R. Rep. No. 104-664, at 12, 16. Preserving this institution is not the same as “mere moral disapproval of an excluded group,” Lawrence, 539 U.S. at 585 (O’Connor, J., concurring), and that is singularly so in this case given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments from a few individual legislators; but the motives of a small group cannot taint a statute supported by large majorities in both Houses and signed by President Clinton. Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity—not on benefits firmly provable in

24a
court. The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
Hara’s Health Benefits Claim. A distinct, if much narrower, issue is raised by Dean Hara, one of the Gill plaintiffs. Although the district court ordered the relief Hara sought for Social Security lump-sum death benefits, the district court found that relief on his second claim for health coverage required a further determination on a precondition that is the subject of a proceeding earlier brought by Hara and now pending in the Federal Circuit. Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir. docketed Mar. 17, 2009).

25a
Hara was married under Massachusetts law to a now-deceased Congressman, and Hara has sought to be enrolled as a surviving spouse for health benefits under the Congressman’s Federal Employees’ Health Benefit Plan (“FEHBP”). For this, (1) Hara would have to be an eligible “annuitant” under the annuity statute, and (2) the Congressman had to have enrolled in the health benefit plan for “self and family,” which he had not done. 5 U.S.C. § 8341; 5 C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity benefit, the Office of Personnel Management (“OPM”) had previously ruled that Hara was ineligible to receive an annuity both because he was not a spouse under DOMA and because the Congressman had not elected such coverage. Such determinations as to annuities are reviewed exclusively by the Merit Systems Protection Board (“MSPB” or “Board”) and then exclusively by the Federal Circuit. 5 U.S.C. §§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely because of DOMA, finding the failure to elect coverage not to bar annuitant status. Hara sought further review in the Federal Circuit, and that case has been stayed pending resolution of the DOMA issue in this circuit. Hara, No. 2009-3134 (Oct. 15, 2010 order staying proceedings). Thus, now—as at the time the district court issued its judgment—a Board determination is in force that Hara lacks annuitant status.
OPM has separately denied Hara’s claim for FEHBP health enrollment because of the Congressman’s failure to elect “self and family” coverage. Although the district court found DOMA unconstitutional, it refused to

26a
resolve Hara’s health coverage claim now because it still depends on Hara establishing eligibility for annuitant status, which is at issue in his pending Federal Circuit appeal. Whether or not Hara lacked standing, the district court showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to recognize his annuitant status because the Board has waived or forfeited any objection based on the failure to elect spousal survivor coverage; but the Department of Justice does not concede the point, which the Federal Circuit presumably will resolve. If Hara prevails there, district court injunctive relief to secure his health coverage is likely to be unnecessary, but our affirmance is without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the reasons and to the extent stated above. Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court’s stay of its injunctive judgment, pending further order of this court. The parties will bear their own costs on these appeals.
It is so ordered.

27a
ADDENDUM SECTION. 1. SHORT TITLE.
This Act may be cited as the “Defense of Marriage Act”. SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following: “§ 1738C. Certain acts, records, and proceedings and the effect thereof
“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.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item: “1738C. Certain acts, records, and proceedings and the effect thereof.”. SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

28a
“§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress,
or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”.
(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item: “7. Definition of ‘marriage’ and ‘spouse’.”

29a
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
MEMORANDUM
TAURO, J. I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiffs, who are seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts.2 Specifically,
1 1 U.S.C. § 7. 2 Defendants in this action are the Office of Personnel Management; the United States Postal Service; John E. Potter, in his official capacity as the Postmaster General of the United States of America; Michael J.

30a
Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly-situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.3 Because this court agrees, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. II. Background4
A. The Defense of Marriage Act
In 1996, Congress enacted, and President Clinton signed into law, the Defense of Marriage Act (“DOMA”).5 At issue in this case is Section 3 of DOMA,
Astrue, in his official capacity as the Commissioner of the Social Security Administration; Eric H. Holder, Jr., in his individual capacity as the United States Attorney General; and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.”
3 Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment’s Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
4 In the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.) this court holds that the Defense of Marriage Act is additionally rendered unconstitutional by operation of the Tenth Amendment and the Spending Clause.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996)

31a
which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In particular, 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.6
In large part, the enactment of DOMA can be understood as a direct legislative response to Baehr v. Lewin,7 a 1993 decision issued by the Hawaii Supreme Court, which indicated that same-sex couples might be entitled to marry under the state’s constitution.8 That decision raised the possibility, for the first time, that same-sex couples could begin to obtain state-sanctioned marriage licenses.9
The House Judiciary Committee’s Report on DOMA (the “House Report”) referenced the Baehr decision as the beginning of an “orchestrated legal assault being
6 1 U.S.C. § 7. 7 852 P.2d 44 (Haw. 1993). 8 See id. at 59-67. 9 Notably, the Baehr decision did not carry the day in Hawaii. Rather, Hawaii ultimately amended its constitution to allow the state legislature to limit marriage to opposite-sex couples. See HAW. CONST. art. I, § 23. However, five other states and the District of Columbia now extend full marriage rights to same-sex couples. These five states are Iowa, New Hampshire, Connecticut, Vermont, and Massachusetts, where Plaintiffs reside.

32a
waged against traditional heterosexual marriage,” and expressed concern that this development “threaten[ed] to have very real consequences . . . on federal law.” 10 Specifically, the Report warned that “a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.” 11
And so, in response to the Hawaii Supreme Court’s decision, Congress sought a means to both “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.12
In enacting Section 2 of DOMA,13 Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage. In so doing, 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.” 14 With regard to Section 3 of DOMA, the House Report explained that the statute codifies the
10 Aff. of Gary D. Buseck, Ex. D, H.R. Rep. No. 104-664 at 2-3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906-07 (“H. Rep.”) [hereinafter “House Report”].
11 Id. at 10. 12 Id. at 2. 13 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.” 14 Id. at 25.

33a
definition of marriage set forth in “the standard law dictionary,” for purposes of federal law.15
The House Report acknowledged that federalism constrained Congress’ power, and that “[t]he determination of who may marry in the United States is uniquely a function of state law.” 16 Nonetheless, it asserted that Congress was not “supportive of (or even indifferent to) the notion of same-sex ‘marriage,’ ” 17 and, therefore, embraced DOMA as a step toward furthering Congress’s interests in “defend[ing] the institution of traditional heterosexual marriage.” 18
The House Report further justified the enactment of DOMA as a means to “encourag[e] responsible procreation and child-rearing,” conserve scarce resources,19 and reflect Congress’ “moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” 20 In one unambiguous expression of these objectives, Representative Henry Hyde, then-Chairman of the House Judiciary Committee, stated that “[m]ost people do not approve of homosexual conduct . . . and they express their disapprobation through the law.” 21
In the floor debate, members of Congress repeatedly voiced their disapproval of homosexuality, calling it “immoral,” “depraved,” “unnatural,” “based on perversion”
15 Id. at 29. (citing BLACK’S LAW DICTIONARY 972 (6th ed. 1990)). 16 Id. at 3. 17 Id. at 12. 18 Id. 19 Id. at 13, 18. 20 Id. at 16 (footnote omitted). 21 142 CONG. REC. H7480 (daily ed. July 12, 1996).

34a
and “an attack upon God’s principles.” 22 They argued that marriage by gays and lesbians would “demean” and “trivialize” heterosexual marriage23 and might indeed be “the final blow to the American family.” 24
Although DOMA drastically amended the eligibility criteria for a vast number of different federal benefits, rights, and privileges that depend upon marital status, the relevant committees did not engage in a meaningful examination of the scope or effect of the law. For example, Congress did not hear testimony from agency heads regarding how DOMA would affect federal programs. Nor was there testimony from historians, economists, or specialists in family or child welfare. Instead, the House Report simply observed that the terms “marriage” and “spouse” appeared hundreds of times in various federal laws and regulations, and that those terms were defined,
22 142 CONG. REC. H7444 (daily ed. July 11, 1996) (statement of Rep. Coburn); 142 CONG. REC. H7486 (daily ed. July 12, 1996) (statement of Rep. Buyer); Id. at H7494 (statement of Rep. Smith).
23 Id. at H7494 (statement of Rep. Smith); see also 142 CONG. REC. S10, 110 (daily ed. Sept. 10, 1996) (statement of Sen. Helms) (“[Those opposed to DOMA] are demanding that homosexuality be considered as just another lifestyle—these are the people who seek to force their agenda upon the vast majority of Americans who reject the homosexual lifestyle . . . Homosexuals and lesbians boast that they are close to realizing their goal—legitimizing their behavior . . . . At the heart of this debate is the moral and spiritual survival of this Nation.”); 142 CONG. REC. H7275 (daily ed. July 11, 1996) (statement of Rep. Barr) (stating that marriage is “under direct assault by the homosexual extremists all across this country”).
24 Id. at H7276 (statement of Rep. Largent); see also 142 CONG. REC. H7495 (daily ed. July 12, 1996) (statement of Rep. Lipinski) (“Allowing for gay marriages would be the final straw, it would devalue the love between a man and a woman and weaken us as a Nation.”).

35a
prior to DOMA, only by reference to each state’s marital status determinations.25
In January 1997, the General Accounting Office issued a report clarifying the scope of DOMA’s effect. It concluded that DOMA implicated at least 1,049 federal laws, including those related to entitlement programs, such as Social Security, health benefits and taxation, which are at issue in this action.26 A follow-up study conducted in 2004 found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status.27
B. The Federal Programs Implicated in This Action Prior to filing this action, each Plaintiff, or his or her spouse, made at least one request to the appropriate federal agency or authority for treatment as a married couple, spouse, or widower with respect to particular federal benefits available to married individuals. But each request was denied. In denying Plaintiffs access to these benefits, the government agencies responsible for administering the relevant programs all invoked DOMA’s mandate that the federal government recognize only those marriages between one man and one woman.
1. Health Benefits Based on Federal Employment
Plaintiffs’ allegations in this case encompass three federal health benefits programs: the Federal Employ-
25 House Report at 10-11. 26 Aff. of Gary D. Buseck, Ex. A, Report of the U.S. General Accounting Office, Office of General Counsel, January 31, 1997 (GAO/OGC-9716). 27 U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/d04353r.pdf.

36a ees Health Benefits Program (the “FEHB”), the Federal Employees Dental and Vision Insurance Program (the “FEDVIP”), and the federal Flexible Spending Arrangement program.
Plaintiff Nancy Gill, an employee of the United States Postal Service, seeks to add her spouse, Marcelle Letourneau, as a beneficiary under Ms. Gill’s existing self and family enrollment in the FEHB, to add Ms. Letourneau to FEDVIP, and to use her flexible spending account for Ms. Letourneau’s medical expenses.
Plaintiff Martin Koski, a former employee of the Social Security Administration, seeks to change his “self only” enrollment in the FEHB to “self and family” enrollment in order to provide coverage for his spouse, James Fitzgerald. And Plaintiff Dean Hara seeks enrollment in the FEHB as the survivor of his spouse, former Representative Gerry Studds.
A. Federal Employees Health Benefits Program
The FEHB is a comprehensive program of health insurance for federal civilian employees,28 annuitants, former spouses of employees and annuitants, and their family members.29 The program was created by the Federal Employees Health Benefits Act, which established (1) the eligibility requirements for enrollment, (2) the types of plans and benefits to be provided, and (3) the qualifications that private insurance carriers
28 “Employee” is defined as including a Member of Congress. 5 U.S.C. § 8901(1)(B).
29 5 U.S.C. § 8905.

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must meet in order to offer coverage under the program.30
The Office of Personnel Management (“OPM”) administers the FEHB and is empowered to negotiate contracts with potential carriers, as well as to set the premiums for each plan.31 OPM also prescribes regulations necessary to carry out the program, including those setting forth “the time at which and the manner and conditions under which an employee is eligible to enroll,” 32 as well as “the beginning and ending dates of coverage of employees, annuitants, members of their families, and former spouses.” 33 Both the government and the enrollees contribute to the payment of insurance premiums associated with FEHB coverage.34
An enrollee in the FEHB chooses the carrier and plan in which to enroll, and decides whether to enroll for individual, i.e. “self only,” coverage or for “self and family” coverage.35 Under OPM’s regulations, “[a]n enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 36 For the purposes of the FEHB statute, a “member of family” is defined as either “the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age . . . .” 37 An employee enrolled in the FEHB for
30 Id. §§ 8901-8914. 31 Id. §§ 8902, 8903, 8906. 32 Id. § 8913. 33 Id. 34 Id. § 8906. 35 Id. §§ 8905, 8906. 36 5 C.F.R. § 890.302(a)(1). 37 Id. § 8901(5).

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“self only” coverage may change to “self and family” coverage by submitting documentation to the employing office during an annual “open season,” or within sixty days after a change in family status, “including a change in marital status.” 38
An “annuitant” eligible for coverage under the FEHB is, generally speaking, either an employee who retires on a federal annuity, or “a member of a family who receives an immediate annuity as the survivor of an employee . . . or of a retired employee . . . .” 39 To be covered under the FEHB, anyone who is not a current federal employee, or the family member of a current employee, must be eligible for a federal annuity, either as a former employee or as the survivor of an employee or former employee. When a federal employee or annuitant dies under “self and family” enrollment in FEHB, the enrollment is “transferred automatically to his or her eligible survivor annuitants.” 40
B. Federal Employees Dental and Vision Insurance Program (“FEDVIP”)
The Federal Employees Dental and Vision Insurance Program provides enhanced dental and vision coverage to federal civilian employees, annuitants, and their family members, in order to supplement health insurance coverage provided by the FEHB.41 The program was created by the Federal Employee Dental and Vision Benefits Enhancement Act of 2004,42 and, as with the
38 See 5 U.S.C. § 8905(f); 5 C.F.R. § 890.301(f), (g). 39 See 5 U.S.C. § 8901(3)(B). 40 5 C.F.R. § 890.303(c). 41 5 U.S.C. §§ 8951, 8952, 8981, 8982. 42 Id. §§ 8951, 8954, 8981, 8984.

39a FEHB generally, FEDVIP is administered by OPM, which contracts with qualified companies and sets the premiums associated with coverage.43 OPM is also authorized to “prescribe regulations to carry out” this program.44
Persons enrolled in FEDVIP pay the full amount of the premiums,45 choose the plan in which to enroll, and decide whether to enroll for “self only,” “self plus one,” or “self and family” coverage.46 Under the associated regulations, an enrollment for “self and family” “covers the enrolled employee or annuitant and all eligible family members.” 47 An employee enrolled in FEDVIP for “self only” coverage may change to “self and family” coverage during an annual “open season” or within 60 days after a “qualifying life event,” including marriage or “acquiring an eligible child.” 48 The terms “annuitant” and “member of family” are defined in the same manner for the purposes of the FEDVIP as they are for the FEHB more generally.49
43 Id. §§ 8952(a), 8953, 8982(a), 8983. 44 Id. §§ 8962(a), 8992(a). 45 Id. §§ 8958(a), 8988(a). 46 Id. §§ 8956(a), 8986(a); see 5 C.F.R. § 894.201(b). 47 Id. § 894.201(c). 48 Id. 894.509(a), (b). 49 See 5 U.S.C. §§ 8951(2), 8991(2).

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C. Flexible Spending Arrangement Program50
A Flexible Spending Arrangement (“FSA”) allows federal employees to set aside a portion of their earnings for certain types of out-of-pocket health care expenses. The money withheld in an FSA is not subject to income taxes.51 OPM established the federal Flexible Spending Arrangement program in 2003.52 This program does not apply, however, to “[c]ertain executive branch agencies with independent compensation authority,” such as the United States Postal Service, which established its own flexible benefits plan prior to the creation of the FSA.53
2. Social Security Benefits
The Social Security Act (“Act”) provides, among other things, Retirement and Survivors’ Benefits to eligible persons. The Act is administered by the Social Security Administration, which is headed by the Commissioner of Social Security.54 The Commissioner has the authority to “make rules and regulations and to establish procedures, not inconsistent with the [pertinent]
50 Plaintiffs’ First Amended and Supplemental Complaint refers to the “Federal Flexible Spending Account Program.” Compl. ¶ 401. Although OPM and the Internal Revenue Service have occasionally used that term, the term now used by both agencies is “Flexible Spending Arrangement.” The term “HCFSA” used by the plaintiffs means “health care flexible spending arrangement.” Id. ¶¶ 401, 410-12.
51 26 U.S.C. § 125. 52 See 71 Fed. Reg. 66,827 (Nov. 17, 2006). 53 Id.; see 68 Fed. Reg. 56,525 (Oct. 1, 2003). Because Plaintiff Gill works for the United State Postal Service, her claim with regard to her FSA is asserted only against the Postal Service and not against OPM. 54 42 U.S.C. §§ 901, 902.

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provisions of [the Social Security Act], which are necessary or appropriate to carry out such provisions.” 55
A number of the plaintiffs in this action seek certain Social Security Benefits under the Act, based on marriage to a same-sex spouse. Specifically, Jo Ann Whitehead seeks Retirement Insurance Benefits based on the earnings record of her spouse, Bette Jo Green. Three of the Plaintiffs, Dean Hara, Randell Lewis-Kendell, and Herbert Burtis, seek Lump-Sum Death Benefits based on their marriages to same-sex spouses who are now deceased. And Plaintiff Herbert Burtis seeks Widower’s Insurance Benefits.
A. Retirement Benefits The amount of Social Security Retirement Benefits to which a person is entitled depends on an individual’s lifetime earnings in employment or self-employment.56 In addition to seeking Social Security Retirement Benefits based on one’s own earnings, an individual may claim benefits based on the earnings of a spouse, if the claimant “is not entitled to old-age . . . insurance benefits [on his or her own account], or is entitled to old-age . . . insurance benefits based on a primary insurance amount which is less than one-half of the primary insurance amount of [his or her spouse].” 57
B. Social Security Survivor Benefits The Act also provides certain benefits to the surviving spouse of a deceased wage earner. This action implicates two such types of Survivor Benefits, the Lump-
55 Id. § 405(a); see id.§ 902(a)(5). 56 Id. §§ 402, 413(a), 414, 415. 57 Id. § 402(b), (c).

42a Sum Death Benefit and the Widower’s Insurance Benefit.58
i. Lump-Sum Death Benefit The Lump-Sum Death Benefit is available to the surviving widow or widower of an individual who had adequate lifetime earnings from employment or self-employment.59 The amount of the benefit is the lesser of $255 or an amount determined based on a formula involving the individual’s lifetime earnings.60
ii. Widower’s Insurance Benefit The Widower’s Insurance Benefit is available to the surviving husband of an individual who had adequate lifetime earnings from employment or selfemployment.61 The claimant, with a few limited exceptions, must not have “married” since the death of the individual, must have attained the age set forth in the statute, and must be either (1) ineligible for old-age insurance benefits on his own account or (2) entitled to old-age insurance benefits “each of which is less than the primary insurance amount” of his deceased spouse.62
58 The Social Security Act also provides for a Widow’s Insurance Benefit, see 42 U.S.C. § 402(e), but only the Widower’s Insurance Benefit is implicated here because the only plaintiff who seeks such benefits herein is Herbert Burtis, a male.
59 Id. §§ 402(I), 413(a), 414(a), (b). 60 Id. §§ 402(I), 415(a). 61 Id. §§ 402(f), 413(a), 414(a), (b). 62 Id. § 402(f)(1); see id.§ 402(f)(3).

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3. Filing Status Under the Internal Revenue Code
Lastly, a number of Plaintiffs in this case seek the ability to file federal income taxes jointly with their spouses. The amount of income tax imposed on an individual under the Internal Revenue Code depends in part on the taxpayer’s “filing status.” In accordance with the income tax scheme utilized by the federal government, a “married individual . . . who makes a single [tax] return jointly with his spouse” is generally subject to a lower tax than an “unmarried individual” or a “head of household.” 63 “[I]f an individual has filed a separate return for a taxable year for which a joint return could have been made by him and his spouse,” the couple may file a joint return within three years after the filing of the original returns.64 Should the amended return call for a lower tax due than the original return, the taxpayer may also file an administrative request for a refund of the difference.65 III. Discussion
A. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.66 In
63 26 U.S.C. § 1(a), (b), (c); see id. § 6013(a) (“A husband and wife may make a single return jointly of income taxes . . . even though one of the spouses has neither gross income nor deductions [subject to certain exceptions].”).
64 Id. § 6013(b)(1), (2). 65 Id. § 6511(a); see 26 C.F.R. § 301.6402-2(a)(1). 66 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008).

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granting a summary judgment motion, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 67 Because the Parties do not dispute the material facts relevant to the questions raised by this action, it is appropriate for this court to dispose of the issues as a matter of law.68
B. Plaintiff Dean Hara’s Standing to Pursue his Claim for Health Benefits
As a preliminary matter, this court addresses the government’s assertion that Plaintiff Dean Hara lacks standing to pursue his claim for enrollment in the FEHB, as a survivor annuitant, in this court.
“The irreducible constitutional minimum of standing contains three requirements. First and foremost, there must be alleged (and ultimately proven) an injury in fact. . . . Second, there must be causation—a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 69 Where the plaintiff lacks standing to pursue his claim, the
67 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 68 This court notes that Defendants’ Motion to Dismiss [#20] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously. 69 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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court, in turn, lacks subject matter jurisdiction over the dispute.70 At issue here is the question of redressability.
A surviving spouse can enroll in the FEHB program only if he or she is declared eligible to receive a survivor annuity under federal retirement laws.71 Such eligibility is a matter determined initially by OPM,72 subject to review by the Merit Systems Review Board, and finally subject to the exclusive judicial review of the United States Court of Appeals for the Federal Circuit.73
Prior to this action, Mr. Hara sought to enroll in the FEHB as a survivor annuitant based on his deceased spouse’s federal employment. OPM found Mr. Hara ineligible for a survivor annuity both on initial review and on reconsideration. Mr. Hara appealed that decision to the Merit Systems Review Board, which affirmed OPM’s denial. And currently, Mr. Hara’s appeal of the Merit Systems Review Board’s decision is pending before the Federal Circuit.74 Accordingly, the government asserts that a ruling in this court cannot redress Mr. Hara’s inability to enroll in the FEHB as an annuitant, because the Federal Circuit has yet to resolve his appeal of the Merit Systems Review Board’s decision, which affirmed OPM’s finding adverse to Mr. Hara. And so the government maintains that, if Mr. Hara has not been declared eligible for a survivor annuity, he will remain
70 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). 71 5 U.S.C. § 8905(b). 72 5 U.S.C. § 8347(b). 73 See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); see also Lindahl v. OPM, 470 U.S. 768, 775, 791-99 (1985). 74 The appeal, however, has been stayed pending the outcome of this action.

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ineligible for FEHB enrollment, regardless of the outcome of this proceeding. This court agrees.
Plaintiffs arguments to the contrary are unavailing. First, Plaintiffs argue that, in basing its decision on reconsideration explicitly on the finding that Mr. Hara’s spouse failed to elect self and family FEHB coverage prior to his death, OPM effectively conceded Mr. Hara’s status as an annuitant for purposes of appeal to the Federal Circuit. But, regardless of the grounds upon which OPM rested its decision, the fact remains that Mr. Hara applied for an annuity, and the agency which has authority over such matters denied his claim.
Because the Federal Circuit has not held differently, this court must accept OPM’s determination, affirmed by the Merit Systems Review Board, that Mr. Hara is ineligible to receive a survivor annuity pursuant to the FEHB statute. And if he is ineligible to receive a survivor annuity, then he cannot enroll in the FEHB program, notwithstanding this court’s finding that Section 3 of DOMA as applied to Plaintiffs violates principles of equal protection.
Second, Plaintiffs argue that, because OPM did not file a cross-appeal to the Federal Circuit, it is estopped from raising the issue of whether Mr. Hara is an “annuitant” on appeal and, therefore, Mr. Hara’s eligibility for a survivor annuity turns solely on the constitutionality of DOMA. This argument stems from the fact that, unlike OPM, the Merit Systems Review Board deemed Mr. Hara’s spouse to have made the requisite “self and family” benefits election prior to his death, based on unrebutted evidence of his intent.
The Merit Systems Review Board affirmed OPM’s decision that Mr. Hara is ineligible for a survivor annu-

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ity only because DOMA precluded federal recognition of Mr. Hara’s same-sex marriage. Plaintiffs therefore contend that, as a matter of judicial economy, it makes sense for this court to render a decision on Mr. Hara’s claim, because the pending appeal in the Federal Circuit ultimately turns on the precise legal question at issue here, the constitutionality of DOMA.
Though this court is empathetic to Plaintiffs’ argument, identity of issues does not confer standing. The question of standing is one of jurisdiction, not one of efficiency.75 So if this court cannot redress Mr. Hara’s injury, it is without power to hear his claim. Based on this court’s reading of the Merit Systems Review Board’s decision, Plaintiffs are correct that Mr. Hara will be rendered eligible for a survivor annuity if the question of DOMA’s constitutionality is resolved in his favor. But that question, as it pertains to Mr. Hara, must be answered by the Federal Circuit. Accordingly, a decision by this court cannot redress Mr. Hara’s injury and, therefore, this court is without power to hear his claim.
C. The FEHB Statute In the alternative to the constitutional claims analyzed below, Plaintiffs assert that, notwithstanding DOMA, the FEHB statute confers on OPM the discretion to extend health benefits to same-sex spouses. In support of this argument, Plaintiffs contend that the terms “family members” and “members of family” as used in the FEHB statute set a floor, but not a ceiling, to coverage eligibility. Plaintiffs assert, therefore, that
75 See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998) (internal citations omitted).

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OPM may, in its discretion, consider same-sex spouses to be eligible “family members” for purposes of distributing health benefits. To arrive at this interpretation of the FEHB statute, Plaintiffs rely on associated regulations which state that an “enrollment for self and family includes all family members who are eligible to be covered by the enrollment.” 76
A basic tenet of statutory construction teaches that “where the plain language of a statute is clear, it governs.” 77 Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The FEHB statute unambiguously proclaims that “ ‘member of family’ means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age.” 78 And “[w]here, as here, Congress defines what a particular term ‘means,’ that definition controls to the exclusion of any meaning that is not explicitly stated in the definition.” 79
In other words, through the plain language of the FEHB statute, Congress has clearly limited coverage of family members to spouses and unmarried dependent children under 22 years of age. And DOMA, with similar clarity, defines the word “spouse,” for purposes of determining the meaning of any Act of Congress, as “a person of the opposite sex who is a husband or wife.” 80 In the face of such strikingly unambiguous statutory language to the contrary, this court cannot plausibly
76 5 C.F.R. § 890.302(a)(1) (emphasis added). 77 One Nat’l Bank v. Antonellis, 80 F.3d 606, 615 (1st Cir. 1996). 78 5 U.S.C. § 8901(5) (emphasis added). 79 United States v. Roberson, 459 F.3d 39, 53 (1st Cir. 2006). 80 1 U.S.C. § 7.

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interpret the FEHB statute to confer on OPM the discretion to provide health benefits to same-sex couples, notwithstanding DOMA.81
Having reached this conclusion, the analysis turns to the central question raised by Plaintiffs’ Complaint, namely whether Section 3 of DOMA as applied to Plaintiffs82 violates constitutional principles of equal protection.
D. Equal Protection of the Laws
“[T]he Constitution ‘neither knows nor tolerates classes among citizens.’ ” 83 It is with this fundamental principle in mind that equal protection jurisprudence takes on “governmental classifications that ‘affect some groups of citizens differently than others.’ ”84 And it is because of this “commitment to the law’s neutrality
81 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009) (Reinhardt, J.); but see, In re Karen Golinski, 587 F.3d 956, 963 (9th cir. 2009) (Kozinski, C.J.). This court also takes note of Plaintiffs’ argument that the FEHB statute should not be read to exclude same-sex couples as a matter of constitutional avoidance. The doctrine of constitutional avoidance counsels that “between two plausible constructions of a statute, an inquiring court should avoid a constitutionally suspect one in favor of a constitutionally uncontroversial alternative.” United States v. Dwinells, 508 F.3d 63, 70 (1st Cir. 2007). Because this court has concluded that there is but one plausible construction of the FEHB statute, the doctrine of constitutional avoidance has no place in the analysis.
82 In the remainder of this Memorandum, this court uses the term “DOMA” as a shorthand for “Section 3 of DOMA as applied to Plaintiffs.”
83 Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
84 Engquist v. Or. Dep’t of Agric., 553 U.S. 591, ___, 128 S. Ct. 2146, 2152 (2008) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)).

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where the rights of persons are at stake” 85 that legislative provisions which arbitrarily or irrationally create discrete classes cannot withstand constitutional scrutiny.86
To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” 87 But courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” 88 And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class.89 A law that does neither will be upheld if it merely survives the rational basis inquiry—if it bears a rational relationship to a legitimate government interest.90
85 Romer, 517 U.S. at 623. 86 Id. 87 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). 88 Romer, 517 U.S. at 631 (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). 89 Id. 90 Id. (citing Heller v. Doe, 509 U.S. 312, 319-320 (1993)). This constitutional standard of review is alternately referred to as the rational relationship test or the rational basis inquiry.

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Plaintiffs present three arguments as to why this court should apply strict scrutiny in its review of DOMA, namely that:
• DOMA marks a stark and anomalous departure from the respect and recognition that the federal government has historically afforded to state marital status determinations;
• DOMA burdens Plaintiffs’ fundamental right to maintain the integrity of their existing family relationships, and;
• The law should consider homosexuals, the class of persons targeted by DOMA, to be a suspect class.
This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that “there exists no fairly conceivable set of facts that could ground a rational relationship” 91 between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.
1. The Rational Basis Inquiry This analysis must begin with recognition of the fact that rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” 92 A “classification neither involving fundamental rights nor proceeding along suspect lines is accorded
91 Medeiros v. Vincent, 431 F.3d 25, 29 (1st Cir. 2005) (internal citation omitted).
92 Heller v. Doe, 509 U.S. 312, 319-20 (1993) (internal citations omitted).

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a strong presumption of validity . . . [and] courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” 93 Indeed, a court applying rational basis review may go so far as to hypothesize about potential motivations of the legislature, in order to find a legitimate government interest sufficient to justify the challenged provision.94
Nonetheless, “the standard by which legislation such as [DOMA] must be judged is not a toothless one.” 95 “[E]ven in the ordinary equal protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” 96 In other words, a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the court] to ascertain some relation between the classification and the purpose it serve[s].” 97 Courts thereby “ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” 98 Importantly, the objective served by the law must be not only a proper arena
93 Id. (internal citations omitted). 94 Shaw v. Oregon Public Employees’ Retirement Bd., 887 F.2d 947, 948-49 (9th Cir. 1989) (internal quotation omitted). 95 Matthews v. de Castro, 429 U.S. 181, 185 (1976) (internal quotation omitted). 96 Romer, 517 U.S. at 633. 97 Id. 98 Id. (citing Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) (“If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.”).

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for government action, but also properly cognizable by the governmental body responsible for the law in question.99 And the classification created in furtherance of this objective “must find some footing in the realities of the subject addressed by the legislation.” 100 That is to say, the constitution will not tolerate government reliance “on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 101 As such, a law must fail rational basis review where the “purported justifications . . . [make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.” 102
2. Congress’ Asserted Objectives The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.103 For purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute and, therefore, they are addressed below only briefly. But the fact that the government has distanced itself from Congress’ previously asserted reasons for DOMA
99 Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (quoting City of Cleburne, 473 U.S. at 441).
100 Heller v. Doe, 509 U.S. 312, 321 (1993). 101 City of Cleburne, 473 U.S. at 447. 102 Garrett, 531 U.S. at 366 n.4 (citing City of Cleburne, 473 U.S. at 447-450). 103 House Report at 12-18.

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does not render them utterly irrelevant to the equal protection analysis. As this court noted above, even in the context of a deferential rational basis inquiry, the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” 104
This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA.105 Since the enactment of DOMA, a consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.106 But even if Congress believed at the
104 City of Cleburne, 473 U.S. at 446. 105 See Def.’s Mem. Supp. Mot. Dismiss, 19 n.10. 106 Def.’s Mem. Supp. Mot. Dismiss, 19 n.10 (citing American Academy of Pediatrics, Committee on Psychosocial Aspects of Child and Family Health, Coparent or second-parent adoption by same-sex parents, 109 PEDIATRICS 339 (2002), available at http://aappolicy. aappublications.org/cgi/content/full/pediatrics; American Psychological Association, Policy Statement on Lesbian and Gay Parents, http:// www.apa.org/about/governance/council/policy/parenting.aspx; American Academy of Child & Adolescent Psychiatry, Gay, Lesbian, Bisexual, or Transgender Parents Policy Statement http://www.aacap.org/ cs/root/policy_statements/gay_lesbian_transgender_and_bisexual_ parents_ policy_statement; American Medical Association, AMA Policy Regarding Sexual Orientation, http://www.ama-assn.org/ ama/pub/ about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml; Child Welfare League of America, Position Statement on Parenting of Children by Lesbian, Gay, and Bisexual Adults, http://www.cwla.org/programs/ culture/glbtqposition.htm).

55a time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” 107 when afforded equal recognition under federal law.
Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.108 Indeed, “the sterile and the elderly” have never been denied the right to marry by any of the fifty states.109 And the federal government has never considered denying recognition to marriage based on an ability or inability to procreate.
Similarly, Congress’ asserted interest in defending and nurturing heterosexual marriage is not “grounded in sufficient factual context [for this court] to ascertain some relation” between it and the classification DOMA
107 Goodridge v. Dep’t of Public Health, 440 Mass. 309, 335 (2003). 108 See Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting). 109 Id.

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effects.110 To begin with, this court notes that DOMA cannot possibly encourage Plaintiffs to marry members of the opposite sex because Plaintiffs are already married to members of the same sex. But more generally, this court cannot discern a means by which the federal government’s denial of benefits to same-sex spouses might encourage homosexual people to marry members of the opposite sex.111 And denying marriage-based benefits to same-sex spouses certainly bears no reasonable relation to any interest the government might have in making heterosexual marriages more secure.
What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” 112 And this the Constitution does not permit. “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean” 113 that the Constitution will not abide such “a bare congressional desire to harm a politically unpopular group.” 114
110 Romer, 517 U.S. at 632-33. 111 Accord In re Brad Levenson, 560 F.3d 1145, 1150 (9th Cir. Jud. Council 2009) (Reinhardt, J.). 112 Id. 113 United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). 114 Moreno, 413 U.S. at 534 (1973); see also, Lawrence 539 U.S. at 571, 578 (suggesting that the government cannot justify discrimination against same-sex couples based on traditional notions of morality alone).

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Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . . ” 115
And finally, Congress attempted to justify DOMA by asserting its interest in the preservation of scarce government resources. While this court recognizes that conserving the public fisc can be a legitimate government interest,116 “a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources.” 117 This court can discern no principled reason to cut government expenditures at the particular expense of Plaintiffs, apart from Congress’ desire to express its disapprobation of same-sex marriage. And “mere negative attitudes, or fear, unsubstantiated by factors which are properly cog-
115 Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
116 This court notes that, though Congress paid lip service to the preservation of resources as a rationale for DOMA, such financial considerations did not actually motivate the law. In fact, the House rejected a proposed amendment to DOMA that would have required a budgetary analysis of DOMA’s impact prior to passage. See 142 CONG. REC. H7503-05 (daily ed. July 12, 1996). Furthermore, the Congressional Budget Office concluded in 2004 that federal recognition of samesex marriages by all fifty states would actually result in a net increase in federal revenue. See Buseck Aff., Ex. C at 1, Cong. Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages.
117 Plyler v. Doe, 457 U.S. 202, 227 (1982) (quoting Graham v. Richardson, 403 U.S. 365, 374-75 (1971)).

58a nizable [by the government]” are decidedly impermissible bases upon which to ground a legislative classification.118
3. Objectives Now Proffered for Purposes of Litigation
Because the rationales asserted by Congress in support of the enactment of DOMA are either improper or without relation to DOMA’s operation, this court next turns to the potential justifications for DOMA that the government now proffers for the purposes of this litigation.
In essence, the government argues that the Constitution permitted Congress to enact DOMA as a means to preserve the “status quo,” pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage. Had Congress not done so, the argument continues, the definitions of “marriage” and “spouse” under federal law would have changed along with each alteration in the status of same-sex marriage in any given state because, prior to DOMA, federal law simply incorporated each state’s marital status determinations. And, therefore, Congress could reasonably have concluded that DOMA was necessary to ensure consistency in the distribution of federal marriage-based benefits.
In addition, the government asserts that DOMA exhibits the type of incremental response to a new social problem which Congress may constitutionally employ in the face of a changing socio-political landscape.
118 City of Cleburne, 473 U.S. at 448.

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For the reasons set forth below, this court finds that, as with Congress’ prior asserted rationales, the government’s current justifications for DOMA fail to ground a rational relationship between the classification employed and a legitimate governmental objective.
To begin, the government claims that the Constitution permitted Congress to wait for the heated debate over same-sex marriage in the states to come to some resolution before formulating an enduring policy at the national level. But this assertion merely begs the more pertinent question: whether the federal government had any proper role to play in formulating such policy in the first instance.
There can be no dispute that the subject of domestic relations is the exclusive province of the states.119 And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law.120 The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses. And indeed, as the government aptly points out, DOMA refrains from directly doing so. Nonetheless, the government’s argument assumes that Congress has some interest in a uniform definition of marriage for purposes of determining federal rights, benefits, and privileges.
119 See, e.g., Elk Grove United Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)); Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156JLT (D. Mass. July 8, 2010) (Tauro, J.).
120 See Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).

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There is no such interest.121 “The scope of a federal right is, of course, a federal question, but that does not mean that its content is not to be determined by state, rather than federal law. This is especially true where a statute deals with a familiar relationship [because] there is no federal law of domestic relations.” 122
This conclusion is further bolstered by an examination of the federal government’s historical treatment of state marital status determinations.123 Marital eligibility for heterosexual couples has varied from state to state throughout the course of history. Indeed, pursuant to the sovereign power over family law granted to the states by virtue of the federalist system, as well as the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise,” 124 individual states have changed their marital eligibility requirements in myriad ways over time.125 And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as
121 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
122 DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (internal citation omitted).
123 This court addresses the federal government’s historical treatment of state marital status determinations at length in the companion case of Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010) (Tauro, J.).
124 United States v. Lopez, 514 U.S. 549, 580-83 (1995) (Kennedy, J., concurring).
125 See, e.g., Michael Grossberg, Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony, 26 Amer. J. of Legal Hist. 197, 197-200 (1982).

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valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law.126
By way of one pointed example, so-called miscegenation statutes began to fall, state by state, beginning in 1948. But no fewer than sixteen states maintained such laws as of 1967 when the Supreme Court finally declared that prohibitions on interracial marriage violated the core constitutional guarantees of equal protection and due process.127 Nevertheless, throughout the evolution of the stateside debate over interracial marriage, the federal government saw fit to rely on state marital status determinations when they were relevant to federal law.
126 See, e.g., Dunn v. Comm’r of Internal Revenue, 70 T.C. 361, 366 (1978) (“recognizing that whether an individual is ‘married’ is, for purposes of the tax laws, to be determined by the law of the State of the marital domicile”); 5 C.F.R. § 843.102 (defining “spouse” for purposes of federal employee benefits by reference to State law); 42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”); 38 U.S.C. § 103(c) (Veterans’ benefits); 20 C.F.R. § 10.415 (Workers’ Compensation); 45 C.F.R. § 237.50(b)(3) (Public Assistance); 29 C.F.R. §§ 825.122 and 825.800 (Family Medical Leave Act); 20 C.F.R. §§ 219.30 and 222.11 (Railroad Retirement Board); 38 C.F.R. § 3.1( j) (Veterans’ Pension and Compensation). Indeed, the only federal statute other than DOMA, of which this court is aware, that denies federal recognition to any statesanctioned marriages is another provision that targets same-sex couples, regarding burial in veterans’ cemeteries, enacted in 1975. See 38 U.S.C. § 101(31).
127 See Loving v. Virginia, 388 U.S. 1, 6 n.5, 12 (1967).

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The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.” 128 This court, however, cannot lend credence to the government’s unsupported assertion in this regard, particularly in light of the lengthy and contentious state-bystate debate that took place over the propriety of interracial marriage not so very long ago.129
Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage—or any other core concept of domestic relations, for that matter. This is so, notwithstanding the occurrence of other similarly politically-charged, protracted, and fluid debates at the state level as to who should be permitted to marry.130
128 Def.’s Reply Mem., 14. 129 See NANCY COTT, PUBLIC VOWS 163 (2000). 130 Congress has contemplated regulating the marital relationship a number of times in the past, but always by way of proposed constitutional amendments, rather than legislation. And none of these proposed constitutional amendments have ever succeeded in garnering enough support to come to a vote in either the House or the Senate. See Edward Stein, Past and Present Proposed Amendments to the United States Constitution Regarding Marriage, 82 WASH. U. L. Q. 611, 61415 (2004). It is worthy of note that Congress’ resort to constitutional amendment when it has previously considered wading into the area of domestic relations appears to be a tacit acknowledgment that, indeed, regulation of familial relationships lies beyond the bounds of its legislative powers. See id. at 620 (internal citations omitted) (“Advocates for nationwide changes to marriage laws typically consider amending the Constitution in part because of the widely-accepted view

63a
Though not dispositive of a statute’s constitutionality in and of itself, “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 131 And the absence of precedent for the legislative classification at issue here is equally instructive, for “‘discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [C]onstitution[]. . . . ’ ” 132
The government is certainly correct in its assertion that the scope of a federal program is generally determined with reference to federal law. But the historically entrenched practice of incorporating state law determinations of marital status where they are relevant to federal law reflects a long-recognized reality of the federalist system under which this country operates. The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest
that, in the United States, for the most part, family law is state law. . . . Although the process of passing a law is much easier than amending the Constitution, a law may still be found unconstitutional. Advocates of federal marriage laws are worried that such laws would be in tension with the thesis that family law is state law and for this reason would be found unconstitutional. Reaching marriage laws by amending the Constitution sidesteps this tension.”).
131 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).
132 Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)).

64a in disregarding those family status determinations properly made by the states.133
Moreover, in order to give any meaning to the government’s notion of preserving the status quo, one must first identify, with some precision, the relevant status quo to be preserved. The government has claimed that Congress could have had an interest in adhering to federal policy regarding the recognition of marriages as it existed in 1996. And this may very well be true. But even assuming that Congress could have had such an interest, the government’s assertion that pursuit of this interest provides a justification for DOMA relies on a conspicuous misconception of what the status quo was at the federal level in 1996.
The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.
Furthermore, this court seriously questions whether it may even consider preservation of the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo
133 See, generally, Commonwealth of Mass. v. Dep’t of Health and Human Servs., et al., No. 09-cv-11156-JLT (D. Mass. July 8, 2010).

65a
might help to achieve. Staying the course is not an end in and of itself, but rather a means to an end. Even assuming for the sake of argument that DOMA succeeded in preserving the federal status quo, which this court has concluded that it did not, such assumption does nothing more than describe what DOMA does. It does not provide a justification for doing it. This court does not doubt that Congress occasionally encounters social problems best dealt with by preserving the status quo or adjusting national policy incrementally.134 But to assume that such a congressional response is appropriate requires a predicate assumption that there indeed exists a “problem” with which Congress must grapple.135
134 The government asserts, without explaining, that DOMA exhibits legislative incrementalism. As Plaintiffs aptly point out, it is unclear how this is so. DOMA, by its language, permanently and sweepingly excludes same-sex married couples from recognition for all federal purposes.
135 Indeed, the cases cited by the government support this court’s interpretation of the incrementalist approach as a means by which to achieve a legitimate government objective and not an objective in and of itself. See, e.g., Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st Cir. 2005) (upholding regulation of lobster fishing method, notwithstanding differential treatment of other fishing methods, to ameliorate problem of overfishing); Butler v. Apfel, 144 F.3d 622, 625 (9th Cir. 1998) (upholding denial of Social Security benefits to incarcerated felons to conserve welfare resources, notwithstanding different treatment of other institutionalized groups because these groups are different in relevant respects); Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (noting that a massive problem, such as global change, is not generally resolved at once but rather with “reform” moving one step at a time, addressing what seems “most acute to the legislative mind”); SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (addressing need for regulatory flexibility to address “specialized problems which arise”); Nat’l Parks Conserv. Ass’n. v. Norton, 324 F.3d 1229, 1245 (11th Cir. 2003) (preserving status quo by allowing leaseholders of stilted structures on

66a
The only “problem” that the government suggests DOMA might address is that of state-to-state inconsistencies in the distribution of federal marriage-based benefits. But the classification that DOMA effects does not bear any rational relationship to this asserted interest in consistency. Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy.
And even within the narrower class of heterosexual married couples, this court cannot apprehend any rational relationship between DOMA and the goal of nationwide consistency. As noted above, eligibility requirements for heterosexual marriage vary by state, but the federal government nonetheless recognizes any heterosexual marriage, which a couple has validly entered pursuant to the laws of the state that issued the license. For example, a thirteen year-old female and a fourteen year-old male, who have the consent of their parents, can obtain a valid marriage license in the state of New Hampshire.136 Though this court knows of no other state in the country that would sanction such a marriage, the
national park land to continue to live in structures to extend their leases for a limited period of time served legitimate interest in ensuring that structures were maintained pending development of planning process); Teigen v. Renfrow, 511 F.3d 1072, 1084-85 (10th Cir. 2007) (preserving status quo by not promoting employees involved in active litigation against government employer served government’s legitimate interest in avoiding courses of action that might negatively impact its prospects of success in the litigation).
136 RSA 457:4-5.

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federal government recognizes it as valid simply because New Hampshire has declared it to be so.
More importantly, however, the pursuit of consistency in the distribution of federal marriage-based benefits can only constitute a legitimate government objective if there exists a relevant characteristic by which to distinguish those who are entitled to receive benefits from those who are not.137 And, notably, there is a readily discernible and eminently relevant characteristic on which to base such a distinction: marital status. Congress, by premising eligibility for these benefits on marriage in the first instance, has already made the determination that married people make up a class of similarly-situated individuals, different in relevant respects from the class of non-married people. Cast in this light, the claim that the federal government may also have an interest in treating all same-sex couples alike, whether married or unmarried, plainly cannot withstand constitutional scrutiny.138
Similarly unavailing is the government’s related assertion that “Congress could reasonably have concluded that federal agencies should not have to deal immediately with [the administrative burden presented by] a changing patchwork of state approaches to same-sex
137 City of Cleburne, 473 U.S. at 439 (explaining that equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike”) (internal citation omitted).
138 See Garrett, 531 U.S. at 366 n.4 (finding that a law failed rational basis review where the “purported justifications . . . made no sense in light of how the [government] treated other groups similarly situated”).

68a marriage” 139 in distributing federal marriage-based benefits. Federal agencies are not burdened with the administrative task of implementing changing state marriage laws—that is a job for the states themselves. Rather, federal agencies merely distribute federal marriage-based benefits to those couples that have already obtained state-sanctioned marriage licenses. That task does not become more administratively complex simply because some of those couples are of the same sex. Nor does it become more complex simply because some of the couples applying for marriage-based benefits were previously ineligible to marry. Every heterosexual couple that obtains a marriage license was at some point ineligible to marry due to the varied age restrictions placed on marriage by each state. Yet the federal administrative system finds itself adequately equipped to accommodate their changed status.
In fact, as Plaintiffs suggest, DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state-sanctioned marriages into two, those that are valid for federal purposes and those that are not. As such, this court finds the suggestion of potential administrative burden in distributing marriage-based benefits to be an utterly unpersuasive excuse for the classification created by DOMA.
Lastly, even if DOMA succeeded in creating consistency in the distribution of federal marriage-based benefits, which this court has concluded that it does not, DOMA’s comprehensive sweep across the entire body of federal law is so far removed from that discrete goal
139 Def.’s Mem. Opp. Summ. Judg., 16.

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that this court finds it impossible to credit the proffered justification of consistency as the motivating force for the statute’s enactment.140
The federal definitions of “marriage” and “spouse,” as set forth by DOMA, are incorporated into at least 1,138 different federal laws, many of which implicate rights and privileges far beyond the realm of pecuniary benefits.141 For example, persons who are considered married for purposes of federal law enjoy the right to sponsor their non-citizen spouses for naturalization,142 as well as to obtain conditional permanent residency for those spouses pending naturalization.143 Similarly, the Family and Medical Leave Act (“FMLA”) entitles federal employees, who are considered married for federal purposes, to twelve weeks of unpaid leave in order to care for a spouse who has a serious health condition or because of any qualifying exigency arising out of the fact that a spouse is on active military duty.144 But because DOMA dictates that the word “spouse”, as used in the above-referenced immigration and FMLA provisions, refers only to a husband or wife of the opposite sex, these significant non-pecuniary federal rights are denied to same-sex married couples.
140 See Romer, 517 U.S. at 635 (rejecting proffered rationale for state constitutional amendment because “[t]he breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
141 See U.S. Gov. Accountability Office, GAO-04-353R Defense of Marriage Act (2004), available at http://www.gao.gov/new.items/ d04353r.pdf.
142 8 U.S.C. § 1430. 143 8 U.S.C. § 1186b(2)(A). 144 See 5 U.S.C. § 6382.

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It strains credulity to suggest that Congress might have created such a sweeping status-based enactment, touching every single federal provision that includes the word marriage or spouse, simply in order to further the discrete goal of consistency in the distribution of federal marriage-based pecuniary benefits. For though the government is correct that the rational basis inquiry leaves room for a less than perfect fit between the means Congress employs and the ends Congress seeks to achieve,145 this deferential constitutional test nonetheless demands some reasonable relation between the classification in question and the purpose it purportedly serves.
In sum, this court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” 146 And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” 147 this court finds that DOMA lacks a rational basis to support it.
This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern
145 See Heller, 509 U.S. at 319-20 (internal citations omitted). 146 Id . at 321. 147 Lofton v. Sec’y of the Dep’t of Children & Family Servs., 377 F.3d 1275, 1280 (11th Cir. 2004) (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of Romer v. Evans).

71a a relationship to legitimate [government] interests.” 148 Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.
In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.
148 Romer, 517 U.S. at 635. 149 Lofton, 377 F.3d at 1280 (Birch, J., specially concurring in the denial of rehearing en banc) (interpreting the mandate of City of Cleburne v. Cleburne Living Center) (emphasis added).

72a IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [#20] is DENIED and Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED, except with regard to Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan, as he lacks standing to pursue that claim in this court. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-10309-JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: July 8, 2010
ORDER
TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that: 1. Defendants’ Motion to Dismiss [#20] is ALLOWED IN PART and DENIED IN PART. Specifically, Defendant’s Motion to Dismiss [#20] is DENIED as to all claims, except Plaintiff Dean Hara’s claim for enrollment in the Federal Employees Health Benefits Plan. 2. Plaintiffs’ Motion for Summary Judgment [#25] is ALLOWED.

74a IT IS SO ORDERED.
/s/ [ILLEGIBLE] United States District Judge

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APPENDIX D
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
No. 1:09-cv-10309 JLT NANCY GILL & MARCELLE LETOURNEAU, ET AL.,
PLAINTIFFS
v. OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
DEFENDANTS
Filed: Aug. 17, 2010
AMENDED JUDGMENT
This action came on for a hearing before the Court on the Defendants’ Motion to Dismiss [#20] and Plaintiffs’ Motion for Summary Judgment [#25], and the issues having been duly heard and a Memorandum having been issued on July 8, 2010,
It is ORDERED AND ADJUDGED: The Plaintiffs’ Motion for Summary Judgment is ALLOWED and: (1) The rights of the Plaintiffs are declared as follows:

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(a) Section 3 of the Defense of Marriage Act, 1 U.S.C. §7 (“DOMA”), is unconstitutional as applied to the Plaintiffs by the Defendants in the administration and application of (1) the Federal Employees Health Benefits Program (“FEHB”), (2) the Federal Employees Dental and Vision Insurance Program (“FEDVIP”), (3) the United States Postal Service Health Care Flexible Spending Account program (“Postal Service Health Care FSA”), (4) certain retirement and survivor benefit provisions of the Social Security Act, as set forth below, and (5) the Internal Revenue Code.
(b) The Plaintiff Nancy Gill is entitled to review of her applications for enrollment of her spouse, Marcelle Letourneau, in the FEHB and the FEDVIP without regard to Section 3 of DOMA.
(c) The Plaintiff Nancy Gill is entitled to obtain reimbursement under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau, subject to the other relevant requirements of the program.
(d) The Plaintiff Martin Koski is entitled to review of his application for enrollment of his spouse, James Fitzgerald, in the FEHB without regard to Section 3 of DOMA.
(e) The Plaintiff Dean Hara is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(f ) The Plaintiff Jo Ann Whitehead is entitled to review of her application for Retirement Insurance Benefits based on the earning record of her spouse,

77a
Bette Jo Green, without regard to Section 3 of DOMA.
(g) The Plaintiff Randell Lewis-Kendell is entitled to review of his application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA.
(h) The Plaintiff Herb Burtis is entitled to review of his applications for the Social Security LumpSum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (2) The Defendant United States Postal Service and Defendant John E. Potter, in his official capacity as the Postmaster General of the United States, are permanently enjoined, ordered, and directed:
(a) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as her spouse in accordance with the requirements of the FEHB but without regard to Section 3 of DOMA; and
(b) to permit reimbursement to Plaintiff Nancy Gill under the Postal Service Health Care FSA for eligible medical expenses incurred by her spouse, Marcelle Letourneau. (3) The Defendant Office of Personnel Management (“OPM”) is permanently enjoined, ordered, and directed:
(a) to review and process, without regard to Section 3 of DOMA, the request of Plaintiff Martin Koski dated October 5, 2007, to change his enrollment in the FEHB from “self only” to “self and family” so as to provide coverage for his spouse, Plaintiff James Fitzgerald;

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(b) to refrain from interfering with or from declining to permit enrollment, on the basis of DOMA, of Marcelle Letourneau in the FEHB as the spouse of Plaintiff Nancy Gill; and
(c) to permit Plaintiff Nancy Gill to designate Plaintiff Marcelle Letourneau as an eligible family member in accordance with the requirements of the FEDVIP but without regard to Section 3 of DOMA. (4) The Defendant Michael J. Astrue, in his official capacity as the Commissioner of the Social Security Administration, is permanently enjoined, ordered, and directed:
(a) to review the Plaintiff Dean Hara’s application for the Social Security Lump-Sum Death Benefit without regard to Section 3 of DOMA;
(b) to review the Plaintiff Jo Ann Whitehead’s application for the Retirement Insurance Benefits based on the earning record of her spouse, Plaintiff Bette Jo Green, without regard to Section 3 of DOMA;
(c) to review the Plaintiff Randell LewisKendell’s application for the Social Security LumpSum Death Benefit without regard to Section 3 of DOMA; and
(d) to review the Plaintiff Herb Burtis’s application for the Social Security Lump-Sum Death Benefit and for the Widower’s Insurance Benefit without regard to Section 3 of DOMA. (5) On Counts IV, V, VI, VII, and VIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate pro-

79a
vided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Mary Ritchie and Kathleen Bush as against the United States of America:
(a) For the taxable year ending December 31, 2004: $1,054.
(b) For the taxable year ending December 31, 2005: $2,703.
(c) For the taxable year ending December 31, 2006: $4,390.
(d) For the taxable year ending December 31, 2007: $6,371.
(e) For the taxable year ending December 31, 2008: $4,548. (6) On Counts IX, X, XI, XII, and XIII of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Melba Abreu and Beatrice Hernandez as against the United States of America:
(a) For the taxable year ending December 31, 2004: $4,687.
(b) For the taxable year ending December 31, 2005: $3,785.
(c) For the taxable year ending December 31, 2006: $5,546.

80a
(d) For the taxable year ending December 31, 2007: $5,697.
(e) For the taxable year ending December 31, 2008: $5,644. (7) On Counts XIV, XV, and XVI of the Second Amended and Supplemental Complaint, the following amounts, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, are awarded to the Plaintiffs Marlin Nabors and Jonathan Knight as against the United States of America:
(a) For the taxable year ending December 31, 2006: $1,286.
(b) For the taxable year ending December 31, 2007: $1,234.
(c) For the taxable year ending December 31, 2008: $374. (8) On Count XVII of the Second Amended and Supplemental Complaint, the amount of $3,332 for the taxable year ending December 31, 2006, plus statutory interest thereon at the rate provided by Section 6621 of the Internal Revenue Code (26 U.S.C.) to a date preceding issuance of the refund check by not more than 30 days, is awarded to the Plaintiffs Mary Bowe-Shulman and Dorene Bowe-Shulman as against the United States of America. (9) Plaintiffs are awarded their costs. The Defendants’ Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, being allowed solely

81a
on the Plaintiff Dean Hara’s claim for enrollment in the FEHB Program as a matter of standing.
JUDGMENT FOR PLAINTIFFS AS TO COUNTS I-II, III (AS TO DEFENDANT ASTRUE ONLY WITH RESPECT TO THE SOCIAL SECURITY LUMP-SUM DEATH BENEFIT) AND IV-XX.
COUNT III (AS TO DEFENDANT OPM ONLY AND WITH RESPECT TO FEHB HEALTH INSURANCE) IS DISMISSED FOR LACK OF JURISDICTION.
The parties’ concurrence in the form of this Amended Judgment is without prejudice to any appeal from the Amended Judgment or from any earlier rulings that gave rise to and/or produced the Amended Judgment, such as the Order and Memorandum of July 8, 2010 [#69, #70] and the original Judgment of August 12, 2010 [#71].

ENTERED:

/s/ JOSEPH L. TAURO JOSEPH L. TAURO United States District Judge

82a
APPENDIX E UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED
STATES OF AMERICA, DEFENDANTS
Filed: July 8, 2010
MEMORANDUM

83a
TAURO, J.: I. Introduction
This action presents a challenge to the constitutionality of Section 3 of the Defense of Marriage Act1 as applied to Plaintiff, the Commonwealth of Massachusetts (the “Commonwealth”).2 Specifically, the Commonwealth contends that DOMA violates the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs. Because this court agrees, Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff ’s Motion for Summary Judgment [#26] is ALLOWED.3
1 1 U.S.C. § 7. 2 Defendants in this action are the United States Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the Secretary of the Department of Health and Human Services, the United States Department of Veterans Affairs, Eric K. Shinseki, in his official capacity as the Secretary of the Department of Veterans Affairs, and the United States of America. Hereinafter, this court collectively refers to the Defendants as “the government.” 3 In the companion case of Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

84a
II. Background4
A. The Defense of Marriage Act
Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, and President Clinton signed it into law.5 The Commonwealth, by this lawsuit, challenges Section 3 of DOMA, which defines the terms “marriage” and “spouse,” for purposes of federal law, to include only the union of one man and one woman. In pertinent part, Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 6
As of December 31, 2003, there were at least “a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges,” according to estimates from the General Ac-
4 Defendants, with limited exception, concede the accuracy of Plaintiff ’s Statement of Material Facts [#27]. Resp. to Pl.’s Stmt. Mat’l Facts, ¶¶ 1, 2. For that reason, for the purposes of this motion, this court accepts the factual representations propounded by Plaintiff, unless otherwise noted.
5 Pub. L. No. 104-199, 110 Stat. 2419 (1996). Please refer to the background section of the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), for a more thorough review of the legislative history of this statute.
6 1 U.S.C. § 7.

85a
counting Office.7 These statutory provisions pertain to a variety of subjects, including, but not limited to Social Security, taxes, immigration, and healthcare.8
B. The History of Marital Status Determinations in the United States
State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies.9 And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.10
In 1787, during the framing of the Constitution, the issue of marriage was not raised when defining the powers of the federal government.11 At that time, “[s]tates had exclusive power over marriage rules as a central part of the individual states’ ‘police power’—meaning their responsibility (subject to the requirements and
7 Aff. of Jonathan Miller, Ex. 3, p. 1, Report of the U.S. General Accounting Office, Office of General Counsel, January 23, 2004 (GAO04-353R).
8 Id. at 1. 9 Aff. of Nancy Cott (hereinafter, “Cott Aff.”), ¶ 9. Nancy F. Cott, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, submitted an affidavit on the history of the regulation of marriage in the United States, on which this court heavily relies. 10 Id. 11 Id., ¶ 10.

86a
protections of the federal Constitution) for the health, safety and welfare of their populations.” 12
In large part, rules and regulations regarding marriage corresponded with local circumstances and preferences.13 Changes in regulations regarding marriage also responded to changes in political, economic, religious, and ethnic compositions in the states.14 Because, to a great extent, rules and regulations regarding marriage respond to local preferences, such regulations have varied significantly from state to state throughout American history.15 Indeed, since the founding of the United States “there have been many nontrivial differences in states’ laws on who was permitted to marry, what steps composed a valid marriage, what spousal roles should be, and what conditions permitted divorce.” 16
In response to controversies stemming from this “patchwork quilt of marriage rules in the United States,” there have been many attempts to adopt a national definition of marriage.17 In the mid-1880s, for instance, a constitutional amendment to establish uniform regulations on marriage and divorce was proposed for the first time.18 Following the failure of that proposal, there were several other unsuccessful efforts to create a uniform definition of marriage by way of consti-
12 Id. 13 Id. 14 Id. 15 Id., ¶ 14. 16 Id. 17 Id., ¶¶ 15, 18-19. 18 Id., ¶ 19.

87a
tutional amendment.19 Similarly, “[l]egislative and constitutional proposals to nationalize the definition of marriage were put before Congress again and again, from the 1880s to 1950s, with a particular burst of activity during and after World War II, because of the war’s perceived damage to the stability of marriage and because of a steep upswing in divorce.” 20 None of these proposals succeeded, however, because “few members of Congress were willing to supersede their own states’ power over marriage and divorce.” 21 And, despite a substantial increase in federal power during the twentieth century, members of Congress jealously guarded their states’ sovereign control over marriage.22
Several issues relevant to the formation and dissolution of marriages have served historically as the subject of controversy, including common law marriage, divorce, and restrictions regarding race, “hygiene,” and age at marriage.23 Despite contentious debate on all of these subjects, however, the federal government consistently deferred to state marital status determinations.24
For example, throughout much of American history a great deal of tension surrounded the issue of interracial marriage. But, despite differences in restrictions on interracial marriage from state to state, the federal government consistently accepted all state marital status
19 Id . 20 Id. 21 Id. 22 Id. 23 See id ., ¶¶ 20-52. 24 Id .

88a
determinations for the purposes of federal law.25 For that reason, a review of the history of the regulation of interracial marriage is helpful in assessing the federal government’s response to the “contentious social issue”26 now before this court, same-sex marriage.
Rules and regulations regarding interracial marriage varied widely from state to state throughout American history, until 1967, when the Supreme Court declared such restrictions unconstitutional.27 And, indeed, a review of the history of the subject suggests that the strength of state restrictions on interracial marriage largely tracked changes in the social and political climate.
Following the abolition of slavery, many state legislatures imposed additional restrictions on interracial marriage.28 “As many as 41 states and territories of the U.S banned, nullified, or criminalized marriages across the color line for some period of their history, often using ‘racial’ classifications that are no longer recognized.” 29 Of those states, many imposed severe punishment on relationships that ran afoul of their restrictions.30 Alabama, for instance, “penalized marriage, adultery, or fornication between a white and ‘any negro, or the descendant of any negro to the third generation,’ with hard labor of up to seven years.” 31
25 Id ., ¶ 45. 26 Defs.’ Mem. Mot. Dismiss, 27. 27 See Cott Aff., ¶¶ 36, 44. 28 Id ., ¶ 35. 29 Id. 30 Id ., ¶ 37. 31 Id.

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In contrast, some states, like Vermont, did not bar interracial marriage.32 Similarly, Massachusetts, a hub of antislavery activism, repealed its prohibition on interracial marriage in the 1840s.33
The issue of interracial marriage again came to the legislative fore in the early twentieth century.34 The controversy was rekindled at that time by the decline of stringent Victorian era sexual standards and the migration of many African-Americans to the northern states.35 Legislators in fourteen states introduced bills to institute or strengthen prohibitions on interracial marriage in response to the marriage of the African-American boxer Jack Johnson to a young white woman.36 These bills were universally defeated in northern states, however, as a result of organized pressure from AfricanAmerican voters.37
In the decades after World War II, in response to the civil rights movement, many states began to eliminate laws restricting interracial marriage.38 And, ultimately, such restrictions were completely voided by the courts.39
32 Id., ¶ 36. 33 Id . 34 Id ., ¶ 38. 35 Id. 36 Id. 37 Id ., ¶ 38. 38 Id., ¶ 43. 39 In 1948, the Supreme Court of California became the first state high court to hold that marital restrictions based on race were unconstitutional. Id., ¶ 43. In 1948, the Supreme Court finally eviscerated existing state prohibitions on interracial marriage, finding that “deny[ing] this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so

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Throughout this entire period, however, the federal government consistently relied on state determinations with regard to marriage, when they were relevant to federal law.40
C. Same-Sex Marriage in Massachusetts
In 2003, the Supreme Judicial Court of Massachusetts held that excluding same-sex couples from marriage violated the equality and liberty provisions of the Massachusetts Constitution.41 In accordance with this decision, on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples.42 And, since then, the Commonwealth has recognized “a single marital status that is open and available to every qualifying couple, whether same-sex or different-sex.” 43 The Massachusetts legislature rejected both citizen-initiated and legislatively-proposed constitutional amendments to bar the recognition of same-sex marriages.44
As of February 12, 2010, the Commonwealth had issued marriage licenses to at least 15,214 same-sex couples.45 But, as Section 3 of DOMA bars federal recogni-
directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.” Loving v. Virginia, 388 U.S. 1, 12 (1967).
40 Cott Aff., ¶ 45. 41 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959-61, 968 (Mass. 2003). 42 Aff. of Stanley E. Nyberg (hereinafter, “Nyberg Aff.”), ¶ 5. 43 Compl. ¶ 17. 44 Id ., ¶¶ 18-19. 45 Nyberg Aff., ¶¶ 6-7.

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tion of these marriages, the Commonwealth contends that the statute has a significant negative impact on the operation of certain state programs, discussed in further detail below.
D. Relevant Programs 1. The State Cemetery Grants Program
There are two cemeteries in the Commonwealth that are used for the burial of eligible military veterans, their spouses, and their children.46 These cemeteries, which are located in Agawam and Winchendon, Massachusetts, are owned and operated solely by the Commonwealth.47 As of February 17, 2010, there were 5,379 veterans and their family members buried at Agawam and 1,075 veterans and their family members buried at Winchendon.48
The Massachusetts Department of Veterans’ Services (“DVS”) received federal funding from the United States Department of Veterans Affairs (“VA”) for the construction of the cemeteries at Agawam and Winchendon, pursuant to the State Cemetery Grants Program.49 The federal government created the State Cemetery Grants Program in 1978 to complement the VA’s network of national veterans’ cemeteries.50 This program aims to make veterans’ cemeteries available within seventy-five miles of 90% of the veterans across the country.51
46 Aff. of William Walls (hereinafter, “Walls Aff.”), ¶¶ 5, 7. 47 Id. 48 Id., ¶ 4. 49 Id ., ¶ 4. 50 Walls Aff., ¶ 8 (citations omitted). 51 Id .

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DVS received $6,818,011 from the VA for the initial construction of the Agawam cemetery, as well as $4,780,375 for its later expansion, pursuant to the State Cemetery Grants Program.52 DVS also received $7,422,013 from the VA for the construction of the Winchendon cemetery.53
In addition to providing funding for the construction and expansion of state veterans’ cemeteries, the VA also reimburses DVS $300 for the costs associated with the burial of each veteran at Agawam and Winchendon.54 In total, the VA has provided $1,497,300 to DVS for such “plot allowances.” 55
By statute, federal funding for the state veterans’ cemeteries in Agawam and Winchendon is conditioned on the Commonwealth’s compliance with regulations promulgated by the Secretary of the VA.56 If either cemetery ceases to be operated as a veterans’ cemetery, the VA can recapture from the Commonwealth any funds provided for the construction, expansion, or improvement of the cemeteries.57
52 Id ., ¶ 5. 53 Id ., ¶ 5. 54 Id ., ¶ 6 (citing 38 U.S.C. § 2303(b) (“When a veteran dies in a facility described in paragraph (2), the Secretary shall...pay the actual cost (not to exceed $ 300) of the burial and funeral or, within such limits, may make contracts for such services without regard to the laws requiring advertisement for proposals for supplies and services for the Department . . .”)). 55 Id ., ¶ 6. 56 38 U.S.C. § 2408(c). 57 Walls Aff., ¶ 10.

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The VA regulations require that veterans’ cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children. . . .” 58 Since DOMA provides that a same-sex spouse is not a “spouse” under federal law, DVS sought clarification from the VA regarding whether DVS could “bury the same-sex spouse of a veteran in its Agawam or Winchendon state veterans cemetery without losing federal funding provided under [the] VA’s state cemeteries program,” after the Commonwealth began recognizing same-sex marriage in 2004.59 In response, the VA informed DVS by letter that “we believe [the] VA would be entitled to recapture Federal grant funds provided to DVS for either [the Agawam or Winchendon] cemeteries should [Massachusetts] decide to bury the same-sex spouse of a veteran in the cemetery, unless that individual is independently eligible for burial.” 60
More recently, the National Cemetery Administration (“NCA”), an arm of the VA, published a directive in June 2008 stating that “individuals in a same-sex civil union or marriage are not eligible for burial in a national cemetery or State veterans cemetery that receives federal grant funding based on being the spouse or surviving spouse of a same-sex veteran.” 61 In addition, at a 2008 NCA conference, “a representative from the VA gave a presentation making it clear that the VA would
58 38 C.F.R. § 39.5(a). 59 Walls Aff., ¶ 17, Ex. 1., Letter from Tim S. McClain, General Counsel to the Department of Veteran Affairs, to Joan E. O’Connor, General Counsel, Massachusetts Department of Veterans’ Services ( June 18, 2004). 60 Id. 61 Walls Aff., Ex. 2, NCA Directive 3210/1 ( June 4, 2008).

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not permit the burial of any same-sex spouses in VA supported veterans’ cemeteries.” 62
On July 17, 2007, Darrel Hopkins and Thomas Hopkins submitted an application for burial in the Winchendon cemetery.63 The couple were married in Massachusetts on September 18, 2004.64 Darrel Hopkins retired from the United States Army in 1982, after more than 20 years of active military service.65 During his time in the Army, Darrel Hopkins served thirteen months in the Vietnam conflict, three years in South Korea, seven years in Germany (including three years in occupied Berlin), and three years at the School of U.S. Army Intelligence at Fort Devens, Massachusetts.66 He is a decorated soldier, having earned two Bronze Stars, two Meritorious Service Medals, a Meritorious Unit Commendation, an Army Commendation Medal, four Good Conduct Medals, and Vietnam Service Medals (13), and having achieved the rank of Chief Warrant Officer, Second Class.67
Because of his long service to the United States Army, as well as his Massachusetts residency, Darrel Hopkins is eligible for burial in Winchendon cemetery.68 By virtue of his marriage to Darrel Hopkins, Thomas Hopkins is also eligible for burial in the Winchendon cemetery in the eyes of the Commonwealth, which rec-
62 Walls Aff., ¶ 20. 63 Walls Aff., Ex. 3, Copy of Approved Application. 64 Walls Aff., ¶ 22, Ex. 4, Marriage License. 65 Walls Aff., ¶ 23. 66 Id. 67 Id., ¶ 24. 68 Id., ¶ 25.

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ognizes their marriage.69 But because the Hopkins’ marriage is not valid for federal purposes, in the eyes of the federal government, Thomas Hopkins is ineligible for burial in Winchendon.70
Seeking to honor the Hopkins’ wishes, DVS approved their application for burial in the Winchendon cemetery and intends to bury the couple together.71
2. MassHealth Medicaid is a public assistance program dedicated to providing medical services to needy individuals,72 by providing federal funding (also known as “federal financial participation” or “FFP”) to states that pay for medical services on behalf of those individuals.73 Massachusetts’ Executive Office of Health and Human Services administers the Commonwealth’s Medicaid program, known as MassHealth.74 MassHealth provides comprehensive health insurance or assistance in paying for private health insurance to approximately one million residents of Massachusetts.75 The Department of Health and Human Services (“HHS”) reimburses MassHealth for approximately onehalf of its Medicaid expenditures76 and administration
69 Id ., ¶ 26. 70 Id ., ¶ 26. 71 Id ., ¶¶ 21, 27. 72 Aff. of Robin Callahan (hereinafter, “Callahan Aff.”), ¶ 4. 73 Id. 74 Id., ¶¶ 2, 5. 75 Id., ¶ 5. 76 Id ., ¶ 7.

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costs.77 HHS provides MassHealth with billions of dollars in federal funding every year.78 For the fiscal year ending on June 30, 2008, for example, HHS provided MassHealth with approximately $5.3 billion in federal funding.79
To qualify for federal funding, the Secretary of HHS must approve a “State plan” describing the nature and scope of the MassHealth program.80 Qualifying plans must meet several statutory requirements.81 For example, qualifying plans must ensure that state-assisted healthcare is not provided to individuals whose income or resources exceed certain limits.82
Marital status is a relevant factor in determining whether an individual is eligible for coverage by MassHealth.83 The Commonwealth asserts that, because of DOMA, federal law requires MassHealth to assess eligibility for same-sex spouses as though each were single, a mandate which has significant financial consequences for the state.84 In addition, the Commonwealth cannot obtain federal funding for expenditures made for coverage provided to same-sex spouses who do not qualify for
77 Id., ¶ 7. 78 Id., ¶ 6. 79 Id ., ¶ 6 (Commonwealth of Massachusetts, OMB Circular A-133 Report ( June 30, 2008) at 9, http://www.mass.gov/Aosc/docs/ reports_audits/SA/2008/2008_single_audit.pdf (last visited Feb. 17, 2010)). 80 Id., ¶ 8. 81 Id., ¶ 9 (citing 42 U.S.C. §§ 1396a(a)(1)-(65)). 82 Id., ¶ 9. 83 Id., ¶ 11. 84 Id., ¶ 14.

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Medicaid when assessed as single, even though they would qualify if assessed as married.85
The Commonwealth contends that, under certain circumstances, the recognition of same-sex marriage leads to the denial of health benefits, resulting in cost savings for the state. By way of example, in a household of same-sex spouses under the age of 65, where one spouse earns $65,000 and the other is disabled and receives $13,000 per year in Social Security benefits,86 neither spouse would be eligible for benefits under MassHealth’s current practice, since the total household income, $78,000, substantially exceeds the federal poverty level, $14,412.87 Since federal law does not recognize same-sex marriage, however, the disabled spouse, who would be assessed as single according to federal practice, would be eligible for coverage since his income alone, $13,000, falls below the federal poverty level.88
The recognition of same-sex marriages also renders certain individuals eligible for benefits for which they would otherwise be ineligible.89 For instance, in a household consisting of two same-sex spouses under the age of 65, one earning $33,000 per year and the other earning only $7,000 per year,90 both spouses are eligible for healthcare under MassHealth because, as a married couple, their combined income—$40,000—falls below the
85 Id. 86 Id ., ¶ 11. 87 Id., ¶ 11. 88 Id., ¶ 11. 89 Id., ¶ 12. 90 Id., ¶ 12.

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$43,716 minimum threshold established for spouses.91 In the eyes of the federal government, however, only the spouse earning $7,000 per year is eligible for Medicaid coverage.92
After the Commonwealth began recognizing samesex marriages in 2004, MassHealth sought clarification, by letter, from HHS’s Centers for Medicare & Medicaid Services (“CMS”) as to how to implement its recognition of same-sex marriages with respect to Medicaid benefits.93 In response, CMS informed MassHealth that “[i]n large part, DOMA dictates the response” to the Commonwealth’s questions, because “DOMA does not give the [CMS] the discretion to recognize same-sex marriage for purposes of the Federal portion of Medicaid.”94
The Commonwealth enacted the MassHealth Equality Act in July 2008, which provides that “[n]otwithstanding the unavailability of federal financial participation, no person who is recognized as a spouse under the laws of the commonwealth shall be denied benefits that are otherwise available under this chapter due to the provisions of [DOMA] or any other federal nonrecognition of spouses of the same sex.” 95
Following the passage of the MassHealth Equality Act, CMS reaffirmed that DOMA “limits the availability
91 Id., ¶ 12. 92 Id ., ¶ 12. 93 Id ., ¶ 15. 94 Id ., ¶¶ 15-17, Ex. 1, Letter from Charlotte S. Yeh, Regional Administrator, Centers for Medicare & Medicaid Services, to Kristen Reasoner Apgar, General Counsel, Commonwealth of Massachusetts, Executive Office of Health and Human Services (May 28, 2004). 95 Callahan Aff., ¶ 18, MASS. GEN. LAWS ch. 118E, § 61.

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of FFP by precluding recognition of same- sex couples as ‘spouses’ in the Federal program.” 96 In addition, CMS stated that “because same sex couples are not spouses under Federal law, the income and resources of one may not be attributed to the other without actual contribution, i.e. you must not deem income or resources from one to the other.” 97 Finally, CMS informed the Commonwealth that it “must pay the full cost of administration of a program that does not comply with Federal law.” 98
Currently, MassHealth denies coverage to married individuals who would be eligible for medical assistance if assessed as single pursuant to DOMA, a course of action which saves MassHealth tens of thousands of dollars annually in additional healthcare costs.99 Correspondingly, MassHealth provides coverage to married individuals in same-sex relationships who would not be eligible if assessed as single, as required by DOMA. To date, the Commonwealth estimates that CMS’ refusal to provide federal funding to individuals in same-sex couples has resulted in $640,661 in additional costs and as much as much as $2,224,018 in lost federal funding.100
96 Callahan Aff., Ex. 2, Letter from Richard R. McGreal, Associate Regional Administrator, Centers for Medicare & Medicaid Services, to JudyAnn Bigby, M.D., Secretary, Commonwealth of Massachusetts, Executive Office of Health and Human Services (August 21, 2008).
97 Id. 98 Id. 99 Callahan Aff., ¶ 22. 100 Id., ¶ 23.

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3. Medicare Tax
Under federal law, health care benefits for a different-sex spouse are excluded from an employee’s taxable income.101 The value of health care benefits provided to an employee’s same-sex spouse, however, is considered taxable and must be imputed as extra income to the employee for federal tax withholding purposes.102
The Commonwealth is required to pay Medicare tax for each employee hired after April 1, 1986, in the amount of 1.45% of each employee’s taxable income.103 Because health benefits for same-sex spouses of Commonwealth employees are considered to be taxable income for federal purposes, the Commonwealth must pay an additional Medicare tax for the value of the health benefits provided to the same-sex spouses.104
As of December 2009, 398 employees of the Commonwealth provided health benefits to their same-sex spouses.105 For those employees, the amount of monthly imputed income for healthcare benefits extended to their spouses ranges between $400 and $1000 per month.106 For that reason, the Commonwealth has paid approximately $122,607.69 in additional Medicare tax between 2004, when the state began recognizing samesex marriages, and December 2009.107
101 Aff. of Kevin McHugh (hereinafter, “McHugh Aff.”), ¶ 4 (citing 26 U.S.C. § 106; 26 C.F.R. § 1.106-1).
102 McHugh Aff., ¶ 4. 103 Id., ¶ 5 (citing 26 U.S.C. §§ 3121(u), 3111(b)). 104 Id. 105 Id. 106 Id., ¶ 7. 107 Id ., ¶ 8.

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Furthermore, in order to comply with DOMA, the Commonwealth’s Group Insurance Commission has been forced to create and implement systems to identify insurance enrollees who provide healthcare coverage to their same-sex spouses, as well as to calculate the amount of imputed income for each such enrollee.108 Developing such a system cost approximately $47,000, and the Group Insurance Commission continues to incur costs on a monthly basis to comply with DOMA.109
III. Discussion
A. Summary Judgment
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.110 In reviewing a motion for summary judgment, the court “must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party’s behoof.” 111 As the Parties do not dispute the material facts relevant to the constitutional questions raised by this action, it is appropriate to dispose of the issues as a matter of law.112
108 Aff. of Dolores Mitchell (hereinafter, “Mitchell Aff.”), ¶¶ 2, 4-9. 109 Id., ¶ 10. 110 Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008). 111 Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005). 112 This court notes that Defendants’ Motion to Dismiss [#16] is also currently pending. Because there are no material facts in dispute and Defendants’ Motion to Dismiss turns on the same purely legal question as the pending Motion for Summary Judgment, this court finds it appropriate, as a matter of judicial economy, to address the two motions simultaneously.

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B. Standing
This court first addresses the government’s contention that the Commonwealth lacks standing to bring certain claims against the VA and HHS.113
“The irreducible constitutional minimum of standing” hinges on a claimant’s ability to establish the following requirements: “[f]irst and foremost, there must be alleged (and ultimately proven) an injury in fact.... Second, there must be causation—a fairly traceable connection between the plaintiff ’s injury and the complained-of conduct of the defendant. And third, there must be redressability—a likelihood that the requested relief will redress the alleged injury.” 114
The government claims that the Commonwealth has failed to sufficiently establish an injury in fact because “its claims are based on the ‘risk’ of speculative future injury.” 115 Specifically, the government contends that (1) allegations that the VA intends to recoup federal grants for state veterans’ cemeteries grants lacks the “imminency” required to establish Article III standing, and (2) allegations regarding the HHS’ provision of federal Medicaid matching funds constitute nothing more than a hypothetical risk of future enforcement. The government’s arguments are without merit.
The evidentiary record is replete with allegations of past and ongoing injuries to the Commonwealth as a
113 The government does not dispute that the Commonwealth has standing to challenge restrictions on the provision of federal Medicaid matching funds that have already been applied. Defs.’ Mem. Mot. Dismiss, 34.
114 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-04 (1998). 115 Defs.’ Mem. Mot. Dismiss, 32.

103a result of the government’s adherence to the strictures of DOMA. Standing is not contingent, as the government suggests, on Thomas Hopkins—or another similarlysituated individual—being lowered into his grave at Winchendon, or on the Commonwealth’s receipt of an invoice for millions in federal state veterans cemetery grant funds. Indeed, a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis for the threat,” particularly where, as here, it is the government that threatens to impose certain obligations.116
By letter, the VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran at Agawam or Winchendon. And, given that the Hopkins’ application to be buried together has already received the Commonwealth’s stamp of approval, the matter is ripe for adjudication.
Moreover, in light of the undisputed record evidence, the argument that the Commonwealth lacks standing to challenge restrictions on the provision of federal Medicaid matching funds to MassHealth cannot withstand scrutiny. The Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples. Given that the HHS has given no indication
116 See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007).

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that it plans to change course, it is disingenuous to now argue that the risk of future funding denials is “merely . . . speculative.” 117 The evidence before this court clearly demonstrates that the Commonwealth has suffered, and will continue to suffer, economic harm sufficient to satisfy the injury in fact requirement for Article III standing.
C. Challenges to DOMA Under the Tenth Amendment and the Spending Clause of the Constitution
This case requires a complex constitutional inquiry into whether the power to establish marital status determinations lies exclusively with the state, or whether Congress may siphon off a portion of that traditionally state-held authority for itself. This Court has merged the analyses of the Commonwealth challenges to DOMA under the Spending Clause and Tenth Amendment because, in a case such as this, “involving the division of authority between federal and state governments,” these inquiries are two sides of the same coin.118
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” 119 And, correspondingly, the Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 120 The division
117 Def.’s Mem. Mot. Dismiss, 34. 118 New York v. United States, 505 U.S. 144, 156 (1992). 119 United States v. Morrison, 529 U.S. 598, 607 (2000). 120 U.S. CONST. Amend. X.

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between state and federal powers delineated by the Constitution is not merely “formalistic.” 121 Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” 122 This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves.123
The Supreme Court has handled questions concerning the boundaries of state and federal power in either of two ways: “In some cases the Court has inquired whether an Act of Congress is authorized by one of the powers delegated to Congress in Article I of the Constitution.... In other cases the Court has sought to determine whether an Act of Congress invades the province of state sovereignty reserved by the Tenth Amendment.” 124
Since, in essence, “the two inquiries are mirror images of each other,” 125 the Commonwealth challenges Congress’ authority under Article I to promulgate a national definition of marriage, and, correspondingly, complains that, in doing so, Congress has intruded on the exclusive province of the state to regulate marriage.
1. DOMA Exceeds the Scope of Federal Power Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or
121 New York v. United States, 505 U.S. 144, 187 (1992). 122 Id. at 188 (quoting The Federalist No. 39, p. 245 (C. Rossiter ed. 1961)). 123 Id . 124 New York, 505 U.S. at 155. 125 Id. at 156.

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more of its powers enumerated in the Constitution.” 126 As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.” 127 Moreover, “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” 128 Accordingly, it is for this court to determine whether DOMA represents a valid exercise of congressional authority under the Constitution, and therefore must stand, or indeed has no such footing.
The First Circuit has upheld federal regulation of family law only where firmly rooted in an enumerated federal power.129 In many cases involving charges that Congress exceeded the scope of its authority, e.g. Morrison130 and Lopez,131 courts considered whether the challenged federal statutes contain “express jurisdic-
126 United States v. Morrison, 529 U.S. 598, 607 (2000) (quoting Marbury v. Madison, 5 U.S. 137 (1803)).
127 United States v. Meade, 175 F.3d 215, 224 (1st Cir. 1999) (citing Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
128 Morrison, 529 U.S. at 607. 129 See United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997) (the Child Support Recovery Act is a valid exercise of congressional authority pursuant to the Commerce Clause). 130 529 U.S. at 612 (noting that Section 13981 of the Violence Against Women Act of 1994 “contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce”). 131 United States v. Lopez, 514 U.S. 549, 561-62 (1995) (“§ 922(q) contains no jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate commerce”).

107a tional elements” tying the enactment to one of the federal government’s enumerated powers. DOMA, however, does not contain an explicit jurisdictional element. For that reason, this court must weigh the government’s contention that DOMA is grounded in the Spending Clause of the Constitution. The Spending Clause provides, in pertinent part:
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.132 The government claims that Section 3 of DOMA is plainly within Congress’ authority under the Spending Clause to determine how money is best spent to promote the “general welfare” of the public. It is first worth noting that DOMA’s reach is not limited to provisions relating to federal spending. The broad sweep of DOMA, potentially affecting the application of 1,138 federal statutory provisions in the United States Code in which marital status is a factor, impacts, among other things, copyright protections, provisions relating to leave to care for a spouse under the Family and Medical Leave Act, and testimonial privileges.133 It is true, as the government contends, that “Congress has broad power to set the terms on which it disburses federal money to the States” pursuant to its
132 U.S. CONST. art. I, § 8. 133 Pl.’s Reply Mem., 3.

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spending power.134 But that power is not unlimited. Rather, Congress’ license to act pursuant to the spending power is subject to certain general restrictions.135
In South Dakota v. Dole,136 the Supreme Court held that “Spending Clause legislation must satisfy five requirements: (1) it must be in pursuit of the ‘general welfare,’ (2) conditions of funding must be imposed unambiguously, so states are cognizant of the consequences of their participation, (3) conditions must not be ‘unrelated to the federal interest in particular national projects or programs’ funded under the challenged legislation, (4) the legislation must not be barred by other constitutional provisions, and (5) the financial pressure created by the conditional grant of federal funds must not rise to the level of compulsion.” 137
The Commonwealth charges that DOMA runs afoul of several of the above-listed restrictions. First, the Commonwealth argues that DOMA departs from the fourth Dole requirement, regarding the constitutionality of Congress’ exercise of its spending power, because the statute is independently barred by the Equal Protection Clause. Second, the Commonwealth claims that DOMA does not satisfy the third Dole requirement, the “germaneness” requirement, because the statute’s treatment of same-sex couples is unrelated to the purposes of
134 Arlington Cent. Sch. Dist. Bd . of Educ. v. Murphy, 548 U.S. 291, 296 (2006).
135 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 136 483 U.S. 203 (1987). 137 Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 128 (1st Cir. 2003) (citing Dole, 483 U.S. at 207-08, 211).

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Medicaid or the State Veterans Cemetery Grants Program.
This court will first address the Commonwealth’s argument that DOMA imposes an unconstitutional condition on the receipt of federal funds. This fourth Dole requirement “stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional.” 138
The Commonwealth argues that DOMA impermissibly conditions the receipt of federal funding on the state’s violation of the Equal Protection Clause of the Fourteenth Amendment by requiring that the state deny certain marriage-based benefits to same-sex married couples. “The Fourteenth Amendment ‘requires that all persons subjected to . . . legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.’ ” 139 And where, as here, “those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” 140
In the companion case, Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.), this court held that DOMA violates the equal protection principles embodied in the Due Process
138 Dole, 483 U.S. at 210. 139 Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)). 140 Id. (internal citation omitted).

110a Clause of the Fifth Amendment. There, this court found that DOMA failed to pass constitutional muster under rational basis scrutiny, the most highly deferential standard of review.141 That analysis, which this court will not reiterate here, is equally applicable in this case. DOMA plainly conditions the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, though the same benefits are provided to similarly-situated heterosexual couples. By way of example, the Department of Veterans Affairs informed the Commonwealth in clear terms that the federal government is entitled to “recapture” millions in federal grants if and when the Commonwealth opts to bury the samesex spouse of a veteran in one of the state veterans cemeteries, a threat which, in essence, would penalize the Commonwealth for affording same-sex married couples the same benefits as similarly-situated heterosexual couples that meet the criteria for burial in Agawam or Winchendon. Accordingly, this court finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.
And so, as DOMA imposes an unconstitutional condition on the receipt of federal funding, this court finds that the statute contravenes a well-established restriction on the exercise of Congress’ spending power. Because the government insists that DOMA is founded in this federal power and no other, this court finds that Congress has exceeded the scope of its authority.
Having found that DOMA imposes an unconstitutional condition on the receipt of federal funding, this
141 Gill et al. v. Office of Pers. Mgmt. et al., No. 09-cv-10309-JLT (D. Mass. July 8, 2010) (Tauro, J.).

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court need not reach the question of whether DOMA is sufficiently related to the specific purposes of Medicaid or the State Cemetery Grants Program, as required by the third limitation announced in Dole.
2. DOMA Impermissibly Interferes with the Commonwealth’s Domestic Relations Law
That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth Amendment.
In United States v. Bongiorno, the First Circuit held that “a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.” 142
A. DOMA Regulates the Commonwealth “as a State”
With respect to the first prong of this test, the Commonwealth has set forth a substantial amount of evidence regarding the impact of DOMA on the state’s bottom line. For instance, the government has announced that it is entitled to recapture millions of dollars in federal grants for state veterans’ cemeteries at Agawam
142 106 F.3d 1027, 1033 (1st Cir. 1997) (citations and internal quotation marks omitted) (quoting Hodel v. Virginia Surface Mining & Reclam. Ass’n, Inc., 452 U.S. 264, 287-88 (1981)); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004).

112a and Winchendon should the same-sex spouse of a veteran be buried there. And, as a result of DOMA’s refusal to recognize same-sex marriages, DOMA directly imposes significant additional healthcare costs on the Commonwealth, and increases the state’s tax burden for healthcare provided to the same-sex spouses of state employees.143 In light of this evidence, the Commonwealth easily satisfies the first requirement of a successful Tenth Amendment challenge.
B. Marital Status Determinations Are an Attribute of State Sovereignty
Having determined that DOMA regulates the Commonwealth “as a state,” this court must now determine whether DOMA touches upon an attribute of state sovereignty, the regulation of marital status.
“The Constitution requires a distinction between what is truly national and what is truly local.” 144 And, significantly, family law, including “declarations of status, e.g. marriage, annulment, divorce, custody and pa-
143 The government contends that additional federal income and Medicare tax withholding requirements do not offend the Tenth Amendment because they regulate the Commonwealth not as a state but as an employer. It is clear that the Commonwealth has standing to challenge DOMA’s interference in its employment relations with its public employees, Bowen v. Pub. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 51 n.17 (1986), and this court does not read the first prong of the Bongiorno test so broadly as to preclude the Commonwealth from challenging this application of the statute.
144 Morrison, 529 U.S. at 618 (citing Lopez, 514 U.S. at 568).

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ternity,” 145 is often held out as the archetypal area of local concern.146
The Commonwealth provided this court with an extensive affidavit on the history of marital regulation in the United States, and, importantly, the government does not dispute the accuracy of this evidence. After weighing this evidence, this court is convinced that there is a historically entrenched tradition of federal reliance on state marital status determinations. And, even though the government objects to an over-reliance on the historical record in this case,147 “a longstanding history of related federal action . . . can nonetheless be ‘helpful in reviewing the substance of a congressional statutory scheme,’ and, in particular, the reasonableness of the relation between the new statute and pre-existing federal interests.” 148
145 Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun, J., concurring).
146 See, e.g., Boggs v. Boggs, 520 U.S. 833, 848 (1997) (“As a general matter, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ”) (citation omitted); Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”), overruled on other grounds, Williams v. North Carolina, 317 U.S. 287 (1942); see also Morrison, 529 U.S. at 616.
147 Defs.’ Reply Mem., 4-5 (“a history of respecting state definitions of marriage does not itself mandate that terms like ‘marriage’ and ‘spouse,’ when used in federal statutes, yield to definitions of these same terms in state law.”) (emphasis in original).
148 United States v. Comstock, 176 L. Ed. 2d 878, 892 (2010) (internal citations omitted).

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State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard their states’ areas of sovereign concern.
The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character.
That same-sex marriage is a contentious social issue, as the government argues, does not alter this court’s conclusion. It is clear from the record evidence that rules and regulations regarding marital status determinations have been the subject of controversy throughout American history. Interracial marriage, for example, was at least as contentious a subject. But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states. That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded

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marital status determinations as the exclusive province of state government.
That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty.149 For instance, in Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” 150 Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ ” 151
The government has offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sover-
149 See, e.g., Lopez, 514 U.S. 549, 564 (1995) (noting with disfavor that a broad reading of the Commerce Clause could lead to federal regulation of “family law (including marriage, divorce and child custody)”); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); Haddock, 201 U.S. at 575 (“No one denies that the States, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and that] the Constitution delegated no authority to the Government of the United States on [that subject].”); see also, United States v. Molak, 276 F.3d 45, 50 (1st Cir. 2002) (“[d]omestic relations and family matters are, in the first instance, matters of state concern”).
150 529 U.S. at 615 (emphasis added). 151 542 U.S. 1, 12 (2004) (quoting In re Burrus, 136 U.S. 586, 593 (1890)) (other citations omitted).

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eignty.152 The primary thrust of the government’s rebuttal is, in essence, that DOMA stands firmly rooted in Congress’ spending power, and, for that reason, “the fact that Congress had not chosen to codify a definition of marriage for purposes of federal law prior to 1996 does not mean that it was without power to do so or that it renders the 1996 enactment invalid.” 153 Having determined that DOMA is not rooted in the Spending Clause, however, this court stands convinced that the authority to regulate marital status is a sovereign attribute of statehood.
C. Compliance with DOMA Impairs the Commonwealth’s Ability to Structure Integral Operations in Areas of Traditional Governmental Functions
Having determined that marital status determinations are an attribute of state sovereignty, this court must now determine whether compliance with DOMA
152 Certain immigration cases cited by the government do not establish, as it contends, that “courts have long recognized that federal law controls the definition of ‘marriage’ and related terms.” Defs.’ Reply Mem., 5. None of these cases involved the displacement of a state marital status determination by a federal one. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), for instance, involved a challenge by a same-sex spouse to the denial of an immigration status adjustment. Because this case was decided before any state openly and officially recognized marriages between individuals of the same sex, as the Commonwealth does here, Adams carries little weight. And, in Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009), and Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009), the courts merely determined that it would be unjust to deny the adjustment of immigration status to surviving spouses of state-sanctioned marriages solely attributable to delays in the federal immigration process.
153 Defs.’ Reply Mem., 5.

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would impair the Commonwealth’s ability to structure integral operations in areas of traditional governmental functions.154
This third requirement, viewed as the “key prong” of the Tenth Amendment analysis, addresses “whether the federal regulation affects basic state prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its separate and independent existence.” 155 And, in
154 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 684 (1982) (citations and quotation marks omitted). It is worth noting up front that this “traditional government functions” analysis has been the subject of much derision. Indeed, this rubric was once explicitly disavowed by the Supreme Court in the governmental immunity context in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), in which the Court stated that the standard is not only “unworkable but is also inconsistent with established principles of federalism.” Id. at 531, see also United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 368-369 (2007) (noting that legal standards hinging on “judicial appraisal[s] of whether a particular governmental function is ‘integral’ or ‘traditional’ ” were “abandon[ed] . . . as analytically unsound”) (Alito, J., dissenting).
Still, it is this court’s understanding that such an analysis is nonetheless appropriate in light of more recent Supreme Court cases, see, e.g,, New York, 505 U.S. at 159 (noting that the Tenth Amendment challenges “discern[] the core of sovereignty retained by the States”), and Morrison, 529 U.S. at 615-16, which revive the concept of using the Tenth Amendment to police intrusions on the core of sovereignty retained by the state. Moreover, this analysis is necessary, in light of First Circuit precedent, which post-dates the Supreme Court’s disavowal of the traditional governmental functions analysis in Garcia. Bongiorno, 106 F.3d at 1033.
155 United Transp. Union v. Long Island R. R. Co., 455 U.S. 678, 686-687 (1982) (internal citations and quotation marks omitted). This court notes that the concept of “traditional governmental functions” has been the subject of disfavor, see, e.g., Morrison, 529 U.S. 598, 645-52

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view of more recent authority, it seems most appropriate for this court to approach this question with a mind towards determining whether DOMA “infring[es] upon the core of state sovereignty.” 156
Tenth Amendment caselaw does not provide much guidance on this prong of the analysis. It is not necessary to delve too deeply into the nuances of this standard, however, because the undisputed record evidence in this case demonstrates that this is not a close call. DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations. The government, for its part, considers this to be a case about statutory interpretation, and little more. But this case certainly implicates more than tidy questions of statutory interpretation, as the record includes several concrete examples of the impediments DOMA places on the Commonwealth’s basic ability to govern itself.
First, as a result of DOMA, the VA has directly informed the Commonwealth that if it opts to bury samesex spouses of veterans in the state veterans’ cemeteries at Agawam and Winchendon, the VA is entitled to recapture almost $19 million in federal grants for the construction and maintenance of those properties. The Commonwealth, however, recently approved an applica-
(2000) (describing this part of the test as “incoherent” because there is “no explanation that would make sense of the multifarious decisions placing some functions on one side of the line, some on the other”) (Souter, J., dissenting), but was revived by the court in Morrison.
156 New York, 505 U.S. at 177. It is also important to note that in recent history, Tenth Amendment challenges have largely policed the federal government’s efforts to “commandeer” the processes of state government. Here, however, the Commonwealth acknowledges that “this is not a commandeering case.” Pl.’s Mem. Supp. Summ. Judg., 22.

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tion for the burial of Thomas Hopkins, the same-sex partner of Darrel Hopkins, in the Winchendon cemetery, because the state constitution requires that the Commonwealth honor their union. The Commonwealth therefore finds itself in a Catch-22: it can afford the Hopkins’ the same privileges as other similarly-situated married couples, as the state constitution requires, and surrender millions in federal grants, or deny the Hopkins’ request, and retain the federal funds, but run afoul of its own constitution.
Second, it is clear that DOMA effectively penalizes the state in the context of Medicaid and Medicare.
Since the passage of the MassHealth Equality Act, for instance, the Commonwealth is required to afford same-sex spouses the same benefits as heterosexual spouses. The HHS Centers for Medicare & Medicaid Services, however, has informed the Commonwealth that the federal government will not provide federal funding participation for same-sex spouses because DOMA precludes the recognition of same-sex couples. As a result, the Commonwealth has incurred at least $640,661 in additional costs and as much as $2,224,018 in lost federal funding.
In the same vein, the Commonwealth has incurred a significant additional tax liability since it began to recognize same-sex marriage in 2004 because, as a consequence of DOMA, health benefits afforded to same-sex spouses of Commonwealth employees must be considered taxable income.
That the government views same-sex marriage as a contentious social issue cannot justify its intrusion on

120a the “core of sovereignty retained by the States,” 157 because “the Constitution . . . divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”158 This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid. IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is DENIED and Plaintiff ’s Motion for Summary Judgment is ALLOWED. AN ORDER HAS ISSUED.
/s/ JOSEPH L. TAURO United States District Judge
157 New York, 505 U.S. at 159. 158 Id. at 187.

121a APPENDIX F
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 1:09-11156-JLT COMMONWEALTH OF MASSACHUSETTS,
PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: July 8, 2010
ORDER

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TAURO, J. For the reasons set forth in the accompanying Mem-
orandum, this court hereby orders that Defendants’ Motion to Dismiss [#16] is DENIED and Plaintiff’s Motion for Summary Judgment [#26] is ALLOWED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX G UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Civil Action No. 09-11156-JLT COMMONWEALTH OF MASSACHUSETTS, PLAINTIFF
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, IN HER OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; ERIC K. SHINSEKI, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; AND THE UNITED STATES OF AMERICA,
DEFENDANTS
Filed: Aug. 12, 2010
JUDGMENT

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TAURO, J.
Having allowed Plaintiffs Motion for Summary Judgment [#26], this court hereby enters the following judgment in this action:
1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.
4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.
5. This case is hereby CLOSED. IT IS SO ORDERED.
/s/ JOSEPH L. TAURO United States District Judge

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APPENDIX H
1. U.S. Const., Amend. V provides, in pertinent part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * * .
2. 1 U.S.C. 7 provides:
Definition of “marriage” and “spouse”
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.