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Mass_DOMA_Appeals #5624264

Mass_DOMA_Appeals #5624264

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Published by Equality Case Files
Doc #5624264
Doc #5624264

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Published by: Equality Case Files on Mar 12, 2012
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03/12/2012

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March 7, 2012
By Electronic Case Filing
The Honorable Margaret Carter, Clerk of CourtUnited States Court of Appeals for the First CircuitJohn Joseph Moakley U.S. Courthouse1 Courthouse Way, Suite 2500Boston, MA 02210
Re:
Gill v. Office of Personnel Management
,Nos. 10-2204, 10-2207 & 10-2214
 Dear Ms. Carter:Pursuant to Rule 28(j), the Bipartisan Legal Advisory Group of the U.S.House of Representatives submits this letter regarding
Golinski v. U.S. Office of  Personnel Management
, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012),
appeal docketed
,No. 12-15388 (9th Cir. Feb. 24, 2012).The
Golinski
decision suffers from significant flaws. First, the court did notseriously engage
 Baker v. Nelson
, 409 U.S. 810 (1972).
 Baker
held that the EqualProtection Clause does not require the States to define marriage to include same-sex relationships. The
Golinski
court recognized
 Baker
’s effect on state marriagelaws.
Golinski
,
supra
, at *8 n.5. But it went on to invalidate DOMA withoutexplaining why the result would be different under federal law.
See AdarandConstructors, Inc. v. Pena
, 515 U.S. 200, 217 (1995) (“‘[t]his Court’s approach toFifth Amendment equal protection claims has always been precisely the same as toequal protections claims under the Fourteenth Amendment.’”).Second, the
Golinski
court failed to follow binding Ninth Circuit precedentholding that classifications based on sexual orientation are analyzed under therational basis test.
See
 
High Tech Gays v. Defense Indus. Sec. Clearance Office
, 895F.2d 563 (9th Cir. 1990). Instead, it declared that
High Tech
is “outdated” and “nolonger binding precedent.”
Golinski
,
supra
, at *10. In so doing, the
Golinski
courtnot only exceeded its authority as a district court, but became the only Article IIIcourt to hold that DOMA is subject to heightened scrutiny.
Golinski
relied on
Lawrence v. Texas
, 539 U.S. 558 (2003), but the Ninth Circuit has held that
Lawrence
, a substantive due process case, did not change the Circuit’s standard of 
Case: 10-2207 Document: 00116344212 Page: 1 Date Filed: 03/07/2012 Entry ID: 5624264

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