Case 1:09-cv-11156-JLT Document 47 Filed 04/30/10 Page 1 of 22

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

COMMONWEALTH OF )
MASSACHUSETTS, )
)
Plaintiff, )
)
v. ) Civ. A. No. 1:09-11156-JLT
)
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES; )
KATHLEEN SEBELIUS, Secretary of the )
United States Department of Health and )
Human Services; UNITED STATES )
DEPARTMENT OF VETERANS AFFAIRS; )
ERIC K. SHINSEKI, Secretary of the United )
States Department of Veterans Affairs; and )
the UNITED STATES OF AMERICA, )
)
Defendants. )

CONSOLIDATED MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER

SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND IN OPPOSITION TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

TONY WEST
Assistant Attorney General

CARMEN M. ORTIZ
United States Attorney

ARTHUR R. GOLDBERG
Assistant Director, Federal Programs Branch

CHRISTOPHER R. HALL
D.C. Bar No. 468827
Trial Attorney, U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 514-4778
Facsimile: (202) 616-8470
Christopher.Hall@usdoj.gov

Counsel for Defendants

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TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. DOMA Does Not Violate The Tenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. DOMA Does Not Violate The Spending Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. Under The Law Of This Circuit, DOMA Is Consistent

With The Equal Protection Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. DOMA Is Subject to Rational Basis Review Under Controlling First Circuit

Precedent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. This Court Is Bound by First Circuit Precedent Holding that

Sexual Orientation Is Not a Suspect Classification.. . . . . . . . . . . . . . . . . . . . . 9

2. DOMA Does Not Impinge on Any Right That Has Been

Recognized As “Fundamental.”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. DOMA Satisfies Rational Basis Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. The Rationales and Motives Recited by Congress and by Individual

Congressman in 1996 Do Not Render the Statute Unconstitutional . . . . . . . . . . . . . . 16

IV. The Commonwealth Lacks Standing To Bring Purely Speculative Claims

Concerning Its Possible Future Financial Loss.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

-i-
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INTRODUCTION

As stated in defendants’ opening brief, this Administration believes the Defense of

Marriage Act (“DOMA”) is discriminatory and should be repealed. Binding precedent in this

Circuit, however, requires that this Court find that section 3 of DOMA does not violate either the

Tenth Amendment or the Spending Clause.

The Commonwealth asserts DOMA represents an intrusion into family law, an area of

traditional state concern, and that this violates the Tenth Amendment. But DOMA does not

regulate marriage, and same-sex couples are able to legally marry in Massachusetts. DOMA

deals with areas of quintessential federal concern: the meaning of federal laws and the uses of

federal funds. Plaintiff’s Tenth Amendment allegations therefore fail to state a claim upon which

relief may be granted.

Likewise, plaintiff’s Spending Clause claim should also be dismissed. DOMA does not

place an impermissible “condition” on federal funds as that term is understood by the Supreme

Court in the “unconstitutional conditions” context, i.e., where receipt of federal dollars is

conditioned on the recipient’s doing something outside the scope of the relevant federal program.

DOMA regulates how federal resources shall be used by helping to define the scope of federal

programs that involve an individual’s marital status. Even if DOMA is viewed as imposing a

“condition” on these federal programs, this condition defines their very scope and is therefore

germane.

Plaintiff’s allegations that DOMA compels the Commonwealth to violate the equal

protection rights of its citizens also fails to state a claim upon which relief may be granted.

Binding precedent in this Circuit forecloses this Court from finding that DOMA involves a

“suspect classification;” nor does the statute impinge upon any right that the courts have held to

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be “fundamental.” Despite this Administration’s disagreement with DOMA as a matter of

policy, the statute satisfies rational basis review and this Court should, accordingly, dismiss

plaintiff’s constitutional challenge.

For the same reasons stated herein and in defendants’ memorandum in support of their

motion to dismiss, plaintiff is not “entitled to judgment as a matter of law” on its motion for

summary judgment.1 See Fed. R. Civ. P. 56(c)(2). The same binding precedent that forecloses

finding that DOMA involves a “suspect classification” also forecloses considering the

declaration testimony proffered by the plaintiff on that very question. This Court should – and,

in light of First Circuit precedent, must – decline plaintiff’s invitation to break new ground in the

law of equal protection and suspect classifications.

Accordingly, plaintiff’s motion for summary judgment should be denied, and all of

plaintiff’s claims in this action should be dismissed.

ARGUMENT

I. DOMA Does Not Violate The Tenth Amendment

The Tenth Amendment imposes no limit on the range of conditions that Congress may

place on federal grants to the States, South Dakota v. Dole, 483 U.S. 203, 210 (1987), and it

affords the States no immunity from federal regulation, even in areas of their “traditional

governmental functions,” Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530 (1985).

In its Complaint, plaintiff alleged that “Section 3 of DOMA unconstitutionally commandeers the

Commonwealth and its employees as agents of the federal government’s regulatory scheme” in

violation of the Tenth Amendment. As defendants explained in their opening memorandum,

1
Defendants’ earlier memorandum (Doc. 17) is incorporated herein in opposition
to plaintiff’s motion for summary judgment.

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however, Section 3 of DOMA, as applied to Massachusetts, does not violate the Tenth

Amendment. In response, the Commonwealth has abandoned its claim that DOMA violates the

Tenth Amendment by “commandeering” the Commonwealth and its officials. See Doc. 29 at 22

(admitting “this is not a commandeering case”).

In place of its commandeering claim, the Commonwealth now argues that DOMA

“violates the Tenth Amendment by interfering with the Commonwealth’s [alleged] power to

issue marriage licenses that qualify the recipients as ‘married’ under both Massachusetts and

federal law.” Doc. 29 at 19 (emphasis added). Thus, plaintiff would claim for the States, not

Congress, the 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 not among

them. Rather, under our federal system of government, the touchstones of a federal statute’s

meaning are its plain language and the intent of Congress. E.g., Atlantic Fish Spotters Ass'n v.

Evans, 321 F.3d 220, 223-24 (1st Cir. 2003) (in interpreting statutes, courts will honor a term’s

meaning as intended by Congress where it is “specially defined” in the text); U.S. v. Ahlers, 305

F.3d 54, 57-58 (1st Cir. 2002) (statutory interpretation “depends on the meaning of the words

that Congress wrote” and an understanding of “‘congressional intent’” (citation omitted)). The

intent of Congress as to the meaning of the words “marriage” and “spouse” in federal law as

relevant to this litigation is crystal clear, and does not vary from state to state. See 1 U.S.C. § 7.

This is so even though, as the Commonwealth argues, the law of domestic relations has

traditionally been reserved largely to the States. Doc. 29 at 15-16. States traditionally decide, for

example, questions regarding who may marry, the dissolution of marriage, division of marital

property, child custody, and the payment and amount of alimony or child support. See

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); In re Kirby, 403 B.R. 169, 172 (Bkrtcy.

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D. Mass. 2009). Section 3 of DOMA, however, in no way displaces state law with respect to

questions of who may marry, or concerning divorce, custody, and other matters of family law.

Instead, it addresses areas of quintessential federal concern: the expenditure of federal funds and

the meaning of federal statutes.

Article I of the Constitution empowers Congress to expend funds “for the . . . general

Welfare of the United States.” See U.S. Const. art. I, § 8. Under this power, “Congress

possesses great leeway to determine which statutory aims advance the general welfare. The

Supreme Court has made it clear that ‘[w]hen money is spent to promote the general welfare, the

concept of welfare . . . is shaped by Congress.’” Mayweathers v. Newland, 314 F.3d 1062, 1066

(9th Cir. 2002) (quoting Helvering v. Davis, 301 U.S. 619, 645 (1937)); see Dole, 483 U.S. at

207 (referring to “breadth” of spending power). As Section 3 of DOMA is plainly within

Congress’s “enumerated powers” under the Spending Clause, it cannot be said to encroach

unconstitutionally on the authority of the States. See United States v. Meade, 175 F.3d 215, 224

(1st Cir. 1999) (rejecting challenge to federal law prohibiting possession of firearm by person

subject to anti-harassment order or convicted of a crime of domestic violence because, “if

Congress properly acts pursuant to one of its enumerated powers,” it does not improperly

encroach on an area of state concern); United States v. Lewko, 269 F.3d 64, 66-70 (1st Cir. 2001)

(rejecting assertion that Child Support Recovery Act unconstitutionally “encroach[ed] on an area

reserved to the states – namely, family law and domestic relations”).

The Commonwealth claims that its assertion of power to dictate the meaning of federal

statutes is supported by “Congress’s settled, uninterrupted history of respecting state definitions

of marriage[.]” Doc. 29 at 18. Contrary to plaintiffs’ argument, however, a history of respecting

state definitions of marriage does not itself mandate that terms like “marriage” and “spouse,”

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when used in federal statutes, yield to definitions of these same terms in state law. It is

axiomatic that “[t]he same words can have different meanings in different statutes.” U.S. v.

Sterling Nat. Bank & Trust Co. of New York, 494 F.2d 919, 923 (2d Cir. 1974). Indeed, “[i]t is

not unusual for the same word to be used with different meanings in the same act, and there is no

rule of statutory construction which precludes the courts from giving to the word the meaning

which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v.

United States, 286 U.S. 427, 433 (1932). And in any event, 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. If it so chooses,

the constitution empowers Congress to displace state regulation even in areas of their historic

police powers. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (“we start with

the assumption that the historic police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress” (considering federal

preemption of state laws; emphasis added)).

In fact, courts have long recognized that federal law controls the definition of “marriage”

and related terms in, e.g., the immigration context. See Adams v. Howerton, 673 F. 2d 1036,

1038-39 (9th Cir. 1982) (determining whether a marriage is valid under the INA is a two-step

process, including first assessing whether the marriage is valid under state law and then

determining whether the state-approved marriage is a valid marriage under the INA). And courts

have consistently applied the federal definition in interpreting the INA. For example, in Taing v.

Napolitano, the First Circuit considered “whether Mrs. Taing, despite her husband’s death,

remains Mr. Taing's ‘spouse’ and thus qualifies as an ‘immediate relative’ for purposes of the”

Immigration and Nationality Act (“INA”). See 567 F.3d 19, 21 (1st Cir. 2009). The Court of

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Appeals concluded that Mrs. Taing remained a “spouse” under federal law, even if her marriage

actually ceased under state law upon death of her spouse. Id. It did so without even considering

the Commonwealth’s law on the subject. See id. In Lockhart v. Napolitano, 573 F.3d 251, 259-

60 (6th Cir. 2009), the Sixth Circuit reached the same conclusion concerning an Ohio couple,

although Ohio law provides that “a marriage ends with the death of one of the spouses.” As the

Sixth Circuit held, “courts need not incorporate state-law definitions where to do so would

frustrate a federal statute’s purposes.” Id. at 260.

Here, it is crystal clear what meaning Congress intended the words “marriage” and

“spouse” to have under federal law, and there is no reason why the Court “should elevate [the

Commonwealth’s] definition of spouse or marriage above the intent of Congress” when

construing the federal statutes at issue here. Lockhart, 573 F.3d at 260.

II. DOMA Does Not Violate The Spending Clause

The Spending Clause of the Constitution affords Congress broad latitude to “fix the

terms under which it disburses federal money to the States.” Suter v. Artist M, 503 U.S. 347,

356 (1992). Plaintiff claims that DOMA, as applied to the Commonwealth through federal

funding programs, violates the Spending Clause because it imposes “conditions” on spending

that are insufficiently germane to the programs in question and that require the State to violate

the Equal Protection Clause, thus allegedly violating two of the requirements for valid Spending

Clause legislation that the Supreme Court identified in South Dakota v. Dole, 483 U.S. 203, 207-

11 (1987). As defendants explained in their opening memorandum, DOMA does not violate the

Spending Clause.

As an initial matter, and as relevant to this case, it does not even impose a “condition” on

federal aid to the Commonwealth. Massachusetts contends that DOMA is not germane to the

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“actual purpose Congress gave for creating the program[s]” at issue here, which, according to the

State, is to “subsidize[] medical coverage for low-income individuals” (in the case of Medicaid)

and to “provid[e] convenient burial sites for military veterans and their spouses” (in the case of

the States Cemetery Grants Program). Doc. 29 at 37. Congress, however, chose to modify these

federal programs – and their respective purposes – by adopting DOMA, which restricts eligibility

for federal funds on the basis of opposite-sex marital status. See, e.g., 42 U.S.C. §§

1396a(a)(17), 1396r-5; 38 C.F.R. § 39.5(a). Thus, the purpose of the States Cemetery Grants

Program, as amended, is to “provid[e] convenient burial sites for military veterans and their

opposite-sex spouses.” Although this Administration does not believe this opposite-sex

limitation is wise public policy, that limitation is indisputably germane to the Medicaid and the

veterans cemetery programs, as Congress has chosen to define them, and thus does not violate

the Spending Clause. Recognizing that a programmatic eligibility limitation is per se germane

does not render the germaneness “requirement” a “nullity.” Doc. 29 at 37. As Dole itself

illustrates, Congress sometimes defines a federal program (use of federal funds to construct

highways and related facilities) and imposes conditions on the State recipients of those funds that

do not themselves define the scope of the federal program (adoption of an age-21 minimum

drinking age). Here, however, the requirement that veterans cemetery program funds be used

only for burial sites for the opposite-sex spouses of military veterans is no more of a distinct

“condition” outside that program than the requirement that federal highway funds be used to

construct highways, rather than prisons or schools, was a “condition” of the federal highway

program.

Moreover, even if DOMA is not a programmatic limitation on use of federal funds in the

Medicaid and veterans cemetery programs – and it plainly is – it is a permissible “cross-cutting”

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condition. When Congress insists upon spending conditions or restrictions via a separate statute,

it announces a federal interest that follows with each federal dollar spent. Sabri v. U.S., 541 U.S.

600, 605-06 (2004). Such cross-cutting conditions do not necessarily advance the more narrow

objectives of a particular federal spending program, but instead, are a permissible means of

broadly controlling how federal moneys are to be expended. The Commonwealth objects that a

“cross-cutting condition requires a cross-cutting interest” which, it asserts, DOMA is lacking.

Doc. 29 at 38-39. Plaintiff’s policy disagreement with the statute does not render it

unconstitutional, however. See Schweiker v. Hogan, 457 U.S. 569, 589 (1982) (“A belief that an

Act of Congress may be inequitable or unwise is of course an insufficient basis on which to

conclude that it is unconstitutional.”). Whatever federal interests a particular funding program

might otherwise serve, the condition imposed by application of DOMA also serves the federal

interest in avoiding a use of federal funds beyond those that Congress has authorized, as well as

the legitimate interests that Congress could have rationally concluded were furthered by DOMA.

Cf. Sabri, 541 U.S. at 605-06.

III. Under The Law Of This Circuit, DOMA Is Consistent With The Equal Protection
Clause.

A. DOMA Is Subject to Rational Basis Review Under Controlling First Circuit

Precedent.

The Commonwealth argues that DOMA compels it to violate the equal protection rights

of its citizens because it induces the Commonwealth to differentiate between same-sex and

opposite-sex married couples in the Medicaid program and in state-owned veterans’ cemeteries

that have received federal grants. A statute reviewed for compliance with constitutional equal

protection principles is subject only to rational basis review unless it “burdens a suspect class or

impinges upon a fundamental right.” See Toledo v. Sánchez, 454 F.3d 24, 33 (1st Cir. 2006).

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As shown in defendants’ opening memorandum, First Circuit precedent mandates that this case

does not involve a suspect classification, and no right involved here has been classified as

“fundamental.” Nothing in plaintiffs’ memorandum rebuts either proposition.

1. This Court Is Bound by First Circuit Precedent Holding that Sexual

Orientation Is Not a Suspect Classification.

Plaintiff concedes, as it must, that the United States Court of Appeals for the First Circuit

“recently applied rational basis scrutiny to the law excluding gay and lesbian persons from

military service, and noted in its opinion that ‘homosexuals are not a suspect class’” (Doc. 29 at

32). See Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008). Plaintiff does not contend that this

statement was dicta. Instead, plaintiff argues that the First Circuit’s holding in Cook is not

binding here because, it asserts, the court in Cook was not presented with a record concerning

and did not analyze the factors historically used in identifying a suspect classification (Doc. 29 at

32). Notwithstanding this assertion, and while the Court of Appeals may well choose to revisit

its holding in Cook that classifications based on sexual orientation are subject to rational basis

review, this Court is bound by that holding at this time.

On appeal in Cook, the plaintiffs focused on the Supreme Court’s decisions in Romer v.

Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), arguing that they

“mandate a more demanding standard” than rational basis review. Cook, 528 F.3d at 61. The

Court of Appeals considered those decisions and rejected the plaintiffs’ arguments, concluding

that “the district court was correct to analyze the plaintiffs’ equal protection claim under the

rational basis standard,” thereby establishing the binding standard of review in the First Circuit.

Id. In so holding, the court cited decisions in which several of its “sister circuits” had applied

rational basis review to classifications based on sexual orientation. Id. Thus, the court expressly

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concluded that “the district court was correct to reject the plaintiffs’ equal protection claim

because [sexual orientation is] not a suspect class.” Id. at 62.

The court concluded that Romer and Lawrence had not “changed the standard of review

applicable to a legislative classification based on sexual orientation” – that is, that they had not

changed the standard from rational basis under First Circuit precedent. 528 F.3d at 61. Thus, the

court apparently saw no need to analyze the factors that historically govern the identification of a

suspect classification: the applicable standard in this Circuit was rational basis before Romer and

Lawrence, and the court concluded that it remained rational basis after those decisions.2

Accordingly, the Court of Appeals expressly held that sexual orientation is “not a suspect class”

and that “the district court was correct to analyze the plaintiffs' equal protection claim under the

rational basis standard.” Id. at 61-62.

In addition to foreclosing any finding that sexual orientation is a suspect classification

under First Circuit precedent, the foregoing also mandates denial of plaintiff’s motion for

summary judgment, which asks this Court to engage in the very analysis that the Court of

Appeals did not find necessary in Cook. After arguing that Cook does not control here, plaintiff

asserts that classifications based on sexual orientation should be considered constitutionally

suspect under the “factors relevant to heightened scrutiny” (Doc. 29 at 32). Plaintiff submits

declarations addressing those factors, which it characterizes as (1) whether “gay and lesbian

2
Indeed, both the Court of Appeals and this Court typically consider (and reject)
arguments for suspect classifications without analyzing the historical factors; in rejecting such
claims, the courts most often simply allude to the fact that no precedent exists for accepting the
classification. See Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir. 1994); Rodriguez v.
Secretary of Health, Educ. & Welfare, 644 F.2d 918, 920-21 (1st Cir. 1981); Restucci v. Clarke,
669 F. Supp. 2d 150, 158 (D. Mass. 2009); Roche v. Town of Wareham, 24 F. Supp. 2d 146, 153
(D. Mass. 1998); Piacentini v. Levangie, 998 F. Supp. 86, 91 (D. Mass. 1998); see also Margaret
S. v. School Comm. of Town of Greenfield, 59 F. Supp. 2d 237, 244 (D. Mass. 1999).

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people have suffered from a long history of discrimination unrelated to their ability to contribute

to society,” (2) whether “sexual orientation is immutable and is an integral part of identity,” and

(3) whether “gay and lesbian people are a minority group and lack political power compared to

other groups that receive heightened scrutiny.” Doc. 29 at 33-36. The Court of Appeals,

however, already mandated the outcome of any analysis of these factors and foreclosed any

further consideration of them by this Court, when it held that sexual orientation is not a suspect

classification in this Circuit. Its holding to that effect precludes this Court from engaging in the

factual analysis on which plaintiffs’ motion for summary judgment is based.

2. DOMA Does Not Impinge on Any Right That Has Been Recognized
As “Fundamental.”

Where a statute does not “burden[ ] a suspect class,” it will be analyzed under rational

basis review unless it “impinges upon a fundamental right.” See Toledo, 454 F.3d at 33. As

defendants explained in their opening memorandum, DOMA does not burden a right that has

been recognized as fundamental. Plaintiffs do not respond to this assertion in defendants’ motion

to dismiss, apparently conceding the point.3 See Fagan v. Bingham, Civ. A. No. 94-11399-GAO,

1995 WL 791916, at *4 (D. Mass. Nov. 29, 1995) (“[Plaintiff’s] response to the defendants'

motion to dismiss neither mentions Bivens nor attempts to refute the defendants’ several

contentions on this point, suggesting that [plaintiff] has conceded the inapplicability of Bivens.”);

accord DIRECTV, Inc. v. FCC, 110 F.3d 816, 829 (D.C. Cir. 1997) (“[Plaintiff] did not respond

to [defendant’s] argument against their standing, which we therefore take as conceded.”).

3
Defendants note that, in Cook, the First Circuit held that, under Lawrence,
heightened scrutiny applies where there is a governmental intrusion on the liberty interest in
forming an intimate relationship. As explained above, however, plaintiff has abandoned any
argument that might be predicated on this holding.

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B. DOMA Satisfies Rational Basis Review.

Because the applicable standard under binding First Circuit precedent is rational basis

review, the next question is “whether a rational relationship exists between [DOMA] and a

conceivable legitimate governmental objective.” Smithfield Concerned Citizens for Fair Zoning

v. Town of Smithfield, 907 F.2d 239, 246 (1st Cir. 1990) (emphasis in original). In this regard,

the Commonwealth does not dispute several relevant legal developments regarding same-sex

marriage. When DOMA was enacted in 1996, the States were beginning to consider whether to

recognize same-sex marriage as a matter of state law. Since that time, the status of such

marriages in the various States has been varied and shifting. In 1996, no State recognized same-

sex marriage; currently, it is recognized by statute or court decision in five States and the District

of Columbia,4 and prohibited by statute or constitutional amendment in forty States. Further

changes will undoubtedly occur in the future.

As plaintiff argues, the operation and effect of many federal statutes turn on whether

individuals are married (Doc. 28 at 19). Before the enactment of DOMA, the marital status of

individuals under federal law – and thus the operation and effect of those statutes – generally

depended on marital status under state law. In absence of congressional action, therefore, the

effect of the terms “marriage” and “spouse” under federal statutes would have changed with each

change in the status of same-sex marriage in each State, and the application of those federal

statutes would have varied from State to State.

Congress could have anticipated these fluid circumstances, and could reasonably have

concluded that there is a legitimate governmental interest in maintaining the status quo and

4
Those States are New Hampshire, Vermont, Iowa, Connecticut, and
Massachusetts. New York and Maryland recognize same-sex marriages performed in other
States.

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preserving nationwide consistency in the distribution of federal marriage-based benefits. DOMA

satisfies these interests by defining “marriage” and “spouse” as those words were defined by all

fifty States in 1996. Congress may subsequently decide to allocate federal benefits with

recognition of same-sex partners, as the Administration believes it should. Indeed, bills currently

pending in the House and Senate would provide various types of federal benefits for the same-

sex domestic partners of current federal employees. See S. 1102, 111th Cong. (2009); H.R.

2517, 111th Cong. (2009). The Constitution permits Congress to respond to new social

phenomena one step at a time and to adjust national policy incrementally. See FCC v. Beach

Communications, Inc., 508 U.S. 307, 316 (1993); Medeiros v. Vincent, 431 F.3d 25, 31-32 (1st

Cir. 2005). Therefore, Congress’s 1996 decision to maintain the status quo in 1996 was not

irrational or unconstitutional.

Plaintiffs make essentially three arguments in response to these interests. Each of those

arguments is set forth below, followed by defendants’ rejoinder.

a. Maintaining the status quo is “not a legitimate interest” (Doc. 29 at 26).

Courts have indicated that preservation of a status quo can be a legitimate governmental

interest under the rational basis test. For example, in National Parks Conservation Ass'n v.

Norton, the Eleventh Circuit rejected an equal protection challenge to the National Park Service’s

management of a certain location, agreeing with the agency’s contention that “[t]he temporary

preservation of the status quo to preserve options in a long-term planning process . . . is a legiti-

mate government interest.” 324 F.3d 1229, 1245 (11th Cir. 2003). Similarly, in Teigen v.

Renfrow, the Tenth Circuit held that the Constitution did not forbid a state agency from freezing

promotions for employees whose appeals in prior personnel actions remained pending. 511 F.3d

1072 (10th Cir. 2007). The court acknowledged that “maintain[ing] the status quo during the

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pendency of the administrative proceedings” would be a “rational justification[ ] for not wishing

to promote . . . employees who are its adversaries in administrative proceedings.” Id. at 1084; cf.

Waste Mgmt., Inc. v. EPA, 669 F. Supp. 536, 541-43 (D.D.C. 1987) (holding that agency’s

action “to maintain the status quo while a rulemaking is pending” does not violate the APA).

Plaintiff further argues that “even if preservation of the status quo were a defensible

interest, DOMA does not advance it” because the “status quo prior to DOMA was federal

incorporation of state marital status determinations.” Doc. 29 at 27. This argument focuses on

the wrong “status quo.” When DOMA was enacted in 1996, only opposite-sex marriage was

permitted in all fifty States. That is the “status quo” that Congress could reasonably have sought

to maintain in enacting DOMA. Congress had to choose between two interests: continuing in all

respects the “tradition” of accepting any marriage valid under state law, or continuing to define

marriage, at the federal level, as only opposite-sex marriage. That Congress chose the second

over the first does not make the choice unconstitutionally irrational. And DOMA clearly bears a

“rational relationship” to this interest, as there is a close fit between the preserving the status quo

at the federal level while waiting to see how a national debate is to be resolved, and DOMA’s

adoption of the uniform definition of “marriage” prior to 1996. See Heller v. Doe, 509 U.S. 312,

319-20 (1993) (describing “means and end” test).5

b. “DOMA is not incremental, nor is incrementalism a legitimate interest” (Doc. 29

at 28).

At the outset of the national debate regarding same-sex marriage, Congress could

reasonably have concluded that preserving the federal status quo was the best first step. Plaintiff

5
Another “end” to be served by DOMA is preserving nationwide consistency in the
distribution of marriage-based benefits, and the statute also has a close fit with that goal so as to
satisfy rational basis scrutiny.

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notes that current law – Section 3 of DOMA – “permanently denies same-sex married couples

every federal marriage-based right and benefit.” Doc. 29 at 28. But a legislative enactment need

not be “permanent.” As noted already, Congress is currently considering (and the Administration

is supporting) bills that would provide various types of federal benefits for the same-sex

domestic partners of current federal employees. See S. 1102, 111th Cong. (2009); H.R. 2517,

111th Cong. (2009). At the time of DOMA’s enactment in 1996, States were on the verge of

considering significant changes regarding access to marriage, which could have had significant

and unpredictable effects on federal agencies and programs while the question of same-sex

marriage remained unsettled in the States. While plaintiff asserts that “[d]efendants have

identified no legitimate end served . . . by DOMA,” (Doc. 29 at 28), avoiding unpredictability

and confusion in federal benefits is a “legitimate interest.”

c. DOMA “destroys, rather than creates, uniformity in distribution of marriage-

based benefits” (Doc. 29 at 28).

From a federal perspective, DOMA preserves nationwide consistency and uniformity:

notwithstanding the rapidly changing legal status of same-sex marriage among the States,

DOMA established that “marriage” and “spouse” would refer only to opposite-sex marriage for

purposes of federal law. In the absence of DOMA, federal rights would depend on the differing

and changing status of same-sex marriage in each State. Congress could reasonably have

concluded that federal agencies should not have to deal immediately with a changing patchwork

of state approaches to same-sex marriage.

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C. The Rationales and Motives Recited by Congress and by Individual

Congressman in 1996 Do Not Render the Statute Unconstitutional

Plaintiff seeks to refute certain justifications invoked by Congress in enacting DOMA

while describing statements made by individual Congressmen in connection with its enactment

(Doc. 29 at 7-8, 29-31). The defendants, however, have expressly disavowed any reliance on the

purported interests set forth in DOMA’s legislative history (Doc. 17 at 30-31 n.16). The interests

advanced by the government support the statute without recourse to these other purported

rationales. See, e.g., Smithfield Concerned Citizens for Fair Zoning, 907 F.2d at 245-46. In any

event, the extraneous comments of individual legislators are irrelevant, because “[i]t is well

settled that if legislation serves a legitimate purpose on its face, it may not be challenged by

questioning the motives of the legislators.” Muñoz Vargas v. Romero Barceló, 532 F.2d 765,

766 (1st Cir. 1976).

IV. The Commonwealth Lacks Standing To Bring Purely Speculative Claims

Concerning Its Possible Future Financial Loss.

To invoke Article III jurisdiction over its claims in this Court, the Commonwealth “must

show that [it] is under threat of suffering ‘injury in fact’ that is concrete and particularized; the

threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to

the challenged action of the defendant; and it must be likely that a favorable judicial decision will

prevent or redress the injury.” Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009)

(citation omitted); Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir. 1997). As defendants explained

in their opening memorandum, the Commonwealth lacks standing to bring those of its claims

that are based solely on the speculative possibility of future harm, or “risks.” In particular,

plaintiff has not established standing to raise its claims against the Department of Veterans

Affairs and its Secretary. Plaintiff alleges that it risks losing State Cemetery Grants Program

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funds based on its authorization for the burial of a same-sex spouse in a state-owned veterans’

cemetery. As VA informed the Commonwealth in 2004:

While we believe [federal law, 38 U.S.C. §] 2408 would entitle the United States
to recapture cemetery grant funds if a grantee permitted the burial of veterans’
same-sex spouses, whether the Government would assert such claims would
depend upon the policies of the Executive branch officials in office at the time.

See June 18, 2004, 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, at 2 (filed as Exhibit 3 to plaintiff’s Complaint). Plaintiff has not alleged that VA has

sought to recoup funds, or even that VA has threatened to recoup funds. The mere possibility

that it may do so in the future does not support Article III jurisdiction. See McInnis-Misenor v.

Me. Med. Ctr., 319 F.3d 63, 68 (1st Cir. 2003).

In response to defendants’ straightforward standing argument concerning plaintiff’s

speculative claims against VA, the Commonwealth asserts that the standing requirements of

Article III here are “particularly permissive given the ‘special solicitude’ afforded to states.”

Doc. 29 at 39. But plaintiff relies on Massachusetts v. EPA, 549 U.S. 497, 508 (2007), in which

the Supreme Court applied such “special solicitude” not merely because the plaintiff was the

Commonwealth but because, inter alia, it was bringing a procedural claim for which Congress

has specifically provided by statute. Id. At the same time, Massachusetts v. EPA did not address

the kind of speculative claims that the Commonwealth presents here. Id. at 521. Rather, the

Court characterized the harms alleged by the Commonwealth as “serious and well recognized.”

Id. Thus – no matter what kind or degree of “solicitude” the Commonwealth might be owed

when there is actual injury to its quasi-sovereign interests – Massachusetts v. EPA is largely

beside the point. To meet the requirements of Article III subject-matter jurisdiction, the

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Commonwealth must satisfy the “irreducible constitutional minimum” of standing, including

non-speculative injury-in-fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The Commonwealth also references its allegation that its Medicare tax burden is

increased by DOMA, but that allegation is unrelated to plaintiff’s speculative claims against VA.

Standing “is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n. 6 (1996), and the

Commonwealth must “demonstrate standing for each claim [it] seeks to press,” DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 352 (2006).6

The Commonwealth then argues that “the significant ‘risk’ of adverse measures” creates

sufficient injury-in-fact to establish standing (Doc. 29 at 42), but it is not clear why any such

“risk” is “significant” here where, again, defendant has not alleged that VA has threatened to

recoup funds, or taken any steps toward recouping funds, although the Commonwealth states that

VA could have done so at any time since 2007 when the Commonwealth authorized burial of a

same-sex spouse in a state-owned veterans’ cemetery that received a VA grant. Doc. 29 at 9, 13.

There is thus no reason to believe recoupment of funds is imminent, and this is not a situation

where a plaintiff is faced with a “genuine threat of enforcement” that could establish jurisdiction

over a declaratory action. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007)

(cited in Doc. 29 at 40).7 Cf. Renne v. Geary, 501 U.S. 312, 321- 22 (1991) (controversy not ripe

6
As defendants explained in their opening memorandum, the Commonwealth’s
claims premised on its status as an employer, such as those concerning its alleged increased tax
burden, should be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief
may be granted. Doc. 17 at 13-15. In opposition to defendants’ motion to dismiss, the
Commonwealth has raised no argument in support of that Tenth Amendment claim; it is,
accordingly, conceded. E.g., Stoll v. Principi, 449 F.3d 263, 267 (1st Cir. 2006) (“the appellant
has proffered no argument along those lines and, therefore, any such claim has been
abandoned”); Fagan, Civ. A. No. 94-11399-GAO, 1995 WL 791916, at *4.
7
Plaintiff relies on Abbott Labs. v. Gardner, but in that case the Supreme Court
recognized that “a possible financial loss is not by itself a sufficient interest to sustain a judicial

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when Court “possess[ed] no factual record of an actual or imminent application of” challenged

regulation).

CONCLUSION

For the foregoing reasons, the Court should dismiss this action with prejudice.

Dated: April 30, 2010

Respectfully submitted,

TONY WEST
Assistant Attorney General

CARMEN M. ORTIZ
United States Attorney

ARTHUR R. GOLDBERG
Assistant Director, Federal Programs Branch

/s/ Christopher R. Hall

CHRISTOPHER R. HALL
D.C. Bar No. 468827
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 514-4778
Facsimile: (202) 616-8470
Christopher.Hall@usdoj.gov

Counsel for Defendants

challenge to governmental action.” 387 U.S. 136, 153 (1967). Nor is there any allegation, as
there was in Abbott Labs., that the Commonwealth will make “significant changes” in its
activities – here, its management of veterans’ cemeteries – based on the declaratory judgment it
seeks. See id. at 154. To the contrary, the Commonwealth has alleged that it has already
authorized a same-sex spouse for burial in one of its cemeteries without regard to DOMA.
Compl. ¶ 77.

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CERTIFICATE OF SERVICE

I hereby certify that this document(s) 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
April 30, 2010.

/s/ Christopher R. Hall

CHRISTOPHER R. HALL
Trial Attorney
United States Department of Justice
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Telephone: (202) 514-4778
Fax: (202) 616-8470