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Mass DOMA Cases - Joint Proposal

Mass DOMA Cases - Joint Proposal

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Published by Kathleen Perrin
Joint Proposal Regarding Further Proceedings filed in the Mass DOMA cases on appeal in First Circuit. Filed 3/18/2011 (Gill v. OPM and Mass v. HHS)
Joint Proposal Regarding Further Proceedings filed in the Mass DOMA cases on appeal in First Circuit. Filed 3/18/2011 (Gill v. OPM and Mass v. HHS)

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Published by: Kathleen Perrin on Mar 18, 2011
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IN THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUITCOMMONWEALTH OF MASSACHUSETTS )Plaintiff-Appellee, )) No. 10-2204v. ))UNITED STATES DEPARTMENT OF HEALTH )AND HUMAN SERVICES, et al., )Defendants-Appellants. )))DEAN HARA, )Plaintiff-Appellee/Cross-Appellant, ))NANCY GILL, et al., )Plaintiffs-Appellees )) Nos. 10-2207;v. ) 10-2214)OFFICE OF PERSONNEL MANAGEMENT, et al., )Defendants-Appellants/Cross-Appellees. ))
These consolidated cases present challenges to the constitutionality of Section3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7. On February 23, 2011,the President and the Attorney General of the United States announced their determination that Section 3 of DOMA, as applied to same-sex couples who arelegally married under state law, violates the equal protection component of the FifthAmendment. On February 24, 2011, the federal government parties filed a copy of 
Case: 10-2204 Document: 00116185214 Page: 1 Date Filed: 03/18/2011 Entry ID: 5534787
the Attorney General’s letter to Congress setting forth the reasons for thisdetermination and assuring Congress that the Department of Justice will endeavor topreserve “a full and fair opportunity” for Congress “to participate in the litigation”challenging the constitutionality of Section 3 of DOMA. AG Letter at 6. OnFebruary 25, 2011, this Court issued an order directing the parties “to confer and filea joint proposal as to how these cases should proceed in light of the government’sletter of February 24, 2011.” The Court’s order included three questions specificallydirected to the federal government and one directed to cross-appellant Dean Hara.The parties’ response to the Court’s order is set out below.1. Clarification of Federal Government’s Litigation Stance. On February 23,2011, the Attorney General notified Congress that the President and the AttorneyGeneral “have concluded that classifications based on sexual orientation warrantheightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.” AG Letter at 2. The AttorneyGeneral instructed Department attorneys to advise courts of this determination “thata heightened standard should apply, that Section 3 is unconstitutional under thatstandard and that the Department will cease defense of Section 3.” AG Letter at 6.The Attorney General’s letter also notes that “where the applicable standard [of review] is rational basis, . . . a reasonable argument for Section 3's constitutionality2
Case: 10-2204 Document: 00116185214 Page: 2 Date Filed: 03/18/2011 Entry ID: 5534787
may be proffered under that permissive standard.” AG Letter at 6. Accordingly, theDepartment does not intend to withdraw its opening brief or to file a new,superseding opening brief. Because, as the Attorney General explained, thegovernment will remain a party to “continue to represent the interests of the UnitedStates throughout the litigation,” AG Letter at 6, the government reserves the rightto file additional briefs on issues that implicate those interests, within the framework of a revised briefing schedule.2. Congressional Participation. The Bipartisan Legal Advisory Group of theU.S. House of Representatives, which represents the institutional interests of theHouse in judicial proceedings, has informed the Executive Branch of its intention toparticipate in these consolidated cases to defend the constitutionality of thechallenged statute. The Executive Branch respectfully requests that these cases beheld in abeyance for 45 days, until May 2, 2011, to allow sufficient time for theBipartisan Legal Advisory Group to determine the nature of its participation, to retainprivate counsel if it so desires and to make its views known through its own counseldirectly to this Court.3. Status of the Federal Government’s Appeals. The federal government’scurrent litigation position does not provide a basis for dismissal of its appeals in theseconsolidated cases. The Attorney General’s letter to Congress stated the Executive3
Case: 10-2204 Document: 00116185214 Page: 3 Date Filed: 03/18/2011 Entry ID: 5534787

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